Redstate

Ever thought of going to law school? :-).

IANAL, but I read a lot of legal arguments.  That one shines.

Before incurring the wrath of the American Legal Writing Directors, I shall hasten to inform you all that Dames and Moore v. Regan may be found at 453 U.S. 654, or here.

Since I'm not a lawyer, I'll quote a lawyer:

From:

"Some Thoughts on Youngstown Steel"

by John Hinderaker

January 01, 2006

http://powerlineblog.com/archives/012708.php

excerpt:

Congress's constitutional powers relating to military affairs:

-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;

Of these powers, the only one that possibly could apply is: "To make Rules for the Government and Regulation of the land and naval forces." Little case authority construing that clause exists. It was the apparent basis for Congress's adoption of a system of military justice; more recently, Congress adopted the "don't ask, don't tell" policy on homosexuals in the military pursuant to this clause.

While I have not had time for exhaustive research, I can find no suggestion in the case law that the "government and regulation" clause has ever been found to conflict with or limit the President's powers as Commander in Chief. I think the most natural reading of the clause is that, along with the power to raise and support an army and to provide and maintain a navy, it gives Congress the right to establish and organize the armed forces; but the actual deployment and use of the armed forces so established, especially in time of war, is exclusively within the powers of the executive branch. Thus, viewing the NSA as a military asset and its surveillance programs as part of the conduct of a war by the chief executive, Congress could regulate, for example, employment policies of the NSA, but could not dictate to the President how he uses the operational capabilities of the NSA to further military goals. On that approach, if FISA were construed in a manner that would interfere with the President's authority as Commander in Chief, it would be, to that extent, unconstitutional.

The most important factor concerning the breadth of presidential power that a CIC dare exercise is whether his party controls the congress and the seriousness of the threat. Lincoln and FDR faced grave threats with a congress of their own party. The SCOTUS usually refuses to intervene in political questions esp on war powers.

Jackson wrote an essay no one else signed.

Spying, not to mention searching, seizing and  killing, foreign enemies and their allies in this country is as old as the country. It goes on all the time, and has forever under the radar, esp recently during the cold war and then under clintons echelon and ames. This was all before the new dems introduced the anything bush does is bad rule. The NYT is a criminal!

I have links galore

great essay LEON

time NOT wasted

Gain a lot of influence, and Jackson's certainly has. It's more effective to grant them the weight to Jackson's opinion that they would like to afford it, and prove that it still doesn't mean what they claim.

granting test under differing circumstances, that one can justify the NSA spying.

There are just so many precedents, as your diary shows, that I don't hear put forward, many of which go back to Washington.

The best precedents are when congress has not acted in the past despite mopre extreme actions by the exec, and even

LIKE NOW, when the elite 8 didnt raise a peep until the NYT committed treason or at least violated the 1917 Espionage act.

And while I am glad that congress cannot pass a judicial review procedure and wish they would repeal FISA outright, as it is unconstitutional, I can live with the congress review DeWine has proposed.

ONE THING I HAVE SEEN HARDLY ANYONE MENTION, that I have said from day one and which I saw Gonzales allude to in his question avoidnaces is that

we are also and have been since Bell invented it, suveilling calls totally within the US between suspected saboteurs, spies or enemy combatents.

I just cant figure ut when the NYT will break that story or if they first tell the world that the US has broken al qaidas code they have been using on cell phones since the first NYT story broke.

But when Dames & Moore talks about taking a broad look at Congressional intent, surely we have to take into account FISA, too, right? It would be a really weird thing for a judge to do to say, I'm going to see if Congress has expressed any intent on whether the President can wiretap outside of FISA, and I'll look at the AUMF for that, but I won't look at this nice little exclusivity provision of FISA which is very explicit on the point.

Have you looked at the facts of Dames & Moore? There are some similarities to the AUMF. The Hostage Act, which is the bill Congress passed to give Carter specific authorization to do things short of war to get the hostages back, has some pretty broad language, though the Court finds evidence in the legislative history that Congress didn't mean in the Hostage Act to authorize . The major difference between the two cases, of course, is that in Dames, there was nothing from Congress saying "the President does not have the power to settle claims against Iran in American courts" (which is what Carter did). On the other hand, the AUMF is broader than the Hostage Act.

Dames might actually be support against your argument. Look at the second paragraph you quote from the opinion: "Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act." The point Rehnquist is making is that where Congress hasn't specifically legislated on a particular presidential act, we shouldn't presume that they meant to ban the President from doing it. In the FISA context, that's clearly not the case; FISA bans any other domestic surveillance.

Note also that Jackson first rejects three "inherent power" arguments by the Solicitor General's office, including an argument based on the commander-in-chief clause, before he deals with the nebulous fourth argument from the S.G. You might take some support from something Jackson says there, though: "I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society."

I guess what I'm really trying to say is, Dames & Moore isn't really very strong support at all, because Congress has evinced some pretty strong intent against this program, evidenced in FISA itself, to which there's no parallel in Dames & Moore.

You were making some good points - albeit ones that dance around the margin of the issue - and then you chose to wind it up with the AUMF argument, the one that only True Believers subscribe to.  It is a throwaway argument, the one I would put in section E of my brief.

Let's put that aside.  I sense you understand that your analogy of FISA to a statute which says the President can only appoint Democrats to the Supreme Court is inapposite, but you may not understand why.  What you overlook, in legal terms, is the distinction between procedural and substantive limitations.

Let us stipulate that the President has inherent authority to spy on our foreign enemies.  No one seriously questions that.  And let's go a step further by assuming that no substantive limitations whatsoever can be placed on this inherent authority.  Congress cannot pass a law telling the President that he may spy on THIS foreign enemy but not THAT one, any more than they can tell the President he may only nominate Democrats to the Supreme Court.

But FISA does not impose any substantive limitations on this power of the President.  The statute does not presume to dictate which foreign enemies the President may spy on.  It imposes only reasonable, procedural limitations which are designed to ensure that the President stays within the limits of his inherent power.  That he is, in fact, spying only on our foreign enemies, or on those reasonably suspected of being our foreign enemies.

We all know by now what these procedural limitations are.  A secret court with no public record of its proceedings.  A 72-hour retroactive warrant procedure for time-sensitive matters.  Simple procedures, far more streamlined than anything regular law enforcement needs to deal with, designed merely to confirm that electronic surveillance by the Executive Branch stays within the parameters of the President's inherent authority.  To say that it is unconstitutional to attempt to verify that the President is remaining within the bounds of his powers is to say that the President simply must be trusted, any time he claims to be exercising inherent authority.  Even the requirement that the full Intelligence Committee be briefed would surely be unconstitutional under this theory, assuming the President concluded it was too big a burden.

Add to the reasonable nature of FISA's procedural safeguards the friendly political realities of the situation.  The FISA court denies warrant applications once in a blue moon.  Congress is controlled by members of the President's own party who are more than willing to rewrite FISA to give the President whatever he says he needs.  We have been through multiple revisions of the Patriot Act now, the first version of which passed 99-1 only days after 9/11.  Surely the President could have obtained any reasonable modernization of FISA he desired.  And yet, in response to entreaties by Republicans such as Sen. DeWine, the Executive Branch repeatedly responded that they were happy with FISA, that it did not need revisions beyond what they were already requesting.

When the President's powers are at their "lowest ebb," and the only restrictions Congress has attempted to place upon those powers are procedural requirements designed solely to ensure the President does not exceed his powers, it is hard to argue that even those limited steps are beyond Congress' authority.  If Congress cannot take even this step, then it literally cannot do anything at all, which renders Justice Jackson's framework rather quaint and obsolete.

But you don't even attempt to make the case that Congress may not ensure the President stays within the boundaries of his inherent authority.  Instead, you set up straw men, arguing first that georgia10 believes the President may never, ever operate in an area once Congress has spoken to the contrary.  Let us agree to limit ourselves to the language of Justice Jackson's concurrence, and stipulate that the President's claim that FISA is too great an encroachment upon the substance of his eavesdropping powers must be scrutinized with caution.  Believe me, I would be very satisfied if the President's activities were scrutinized with caution by someone other than Alberto Gonzales.

The second strawman we have already dealt with, the claim that a hypothetical statute requiring the President to appoint only Democrats is analogous to FISA.  This ignores the fact that FISA imposes no substantive limitations whatsoever and merely establishes procedures that are easily satisfied so long as the President is keeping within the bounds of his inherent authority to spy on our foreign enemies.

Roosevelt was given, or used, during WW II, Jackson's caution is not surprising.  In a non lawyerly way I could not imagine a similar decision during that war, albeit we were involved in the Korean War at the time of Youngstown.  Time, circumstance, and perceived necessity seem to intrude on the Court's actions.

As the last two posts have well illustrated, the Administration's claim of inherent authority presents a very interesting question that strikes directly at the core of our constitutional democracy.  There's an honest argument to be had here-- and its worth having.  Right now.  At the highest levels.

That's why Senator Frist's opening salvo framing Senator Feingold's resolution as a political stunt that weakens us at a time of war is so disappointing.  (But not surprising-- Senator Frist is really just walking, talking disappointment with an M.D. and a twang.)  The Feingold resolution is not a referendum on the President.  And given the fact Democrats are running away from it, it isn't much of a political stunt.  Its an invitation to honest debate:  What are the limits to the Executive's inherent powers under Article II?  And is the Administration's vision of an uber-Executive consistent with the Constitution's provision of checks and balances?  For that matter, is FISA really an appropriate exercise of Legislative power?  And is the War Powers Act constitutional?  Is Congress the proper arena for deciding these questions?  Is censure premature if SCOTUS hasn't weighed in on the central question of law in this dispute?

Too many folks on the Hill are decidedly uncurious about these questions.  They are decidely uncurious about too many important questions at a crucial time in our nation's history, both in terms of matters foreign and domestic.  Say what you want about Feingold, but he's been asking these questions long before it became popular to do so (if it has, in fact, become popular to do so).  

I got some emails. One in particular I'd like to address.

I'm a bit baffled by your post on redstate.org regarding the President's inherent authority.  This issue has been dissected by a number of attorneys -- republican and democrat -- yet you don't even discuss their arguments.  Perhaps I'm going to sound a bit too preachy, but don't you think it's irresponsible to post on a subject on a popular blog without doing the background research?

Er... no. It appears that a number of people have misapprehended the entire purpose of my post. There may or may not be a lot of complex statutory issues surrounding FISA, etc., but these are outside ambit of what I am attempting to deal with here, which is only about the subject of the President's inherent Constitutional authority in the respective spheres of domestic and foreign affairs. When dealing with that, I don't really feel the need to address any issue anyone's ever raised on this topic.

Among other things, you don't address the fact that FISA specifically mentions that it is the sole authority by which the President can conduct such spying as at issue here.  That pretty clear alters the Youngstown analysis to say the least.  Most lawyers, including conservative republicans, who understand the relevant authorities have concluded that the spying operation raises serious problems.  By trying to dismiss it the constitutional and statutory concerns so quickly, you look more like a political hack than someone trying to determining whether our President has violated the law.

I suppose this is supposed to bother me? The guy who wrote my Con Law textbook is pretty comfortable with my analysis, and rejects georgia10's out of hand. In any event, you can dispute the meaning of "except as otherwise provided by statute" all you want, the Supreme Court looked at the exact same language and Hamdi and concluded that the AUMF counts.

If you're seriously interested in the issue, I suggest you look at David Kris's recent paper on the subject.  Kris was an Associate Deputy Attorney General in charge of national security issues from 2000 to 2003.  He ultimately feels there's insufficient evidence to address the constitutional issue (I think he's being far too cautious), but like nearly everyone else, he determines that there's little question that the President violated FIFSA

I don't have time to read the entire 24 page paper right now, and I'm not getting in to all the statutory authority here, but breezing over his bullet points, Dames and Moore specifically suggests that when it comes to the realm of foreign affairs, the President doesn't need explicit authority, he needs "sort of close" authority. That's kind of the whole point.

But once one accepts that the President is acting in direct contravention to Congress's will, there's a rock sold argument under Youngstown that the President violated the law.  What you make of that, of course, depends on how important the rule of law to you is in a time of war.  Reasonable minds, perhaps, may differ on that question.

Let's put it this way, if Carter and Reagan could suspend the legitimate legal claims of American citizens wholesale and unilaterally, despite not being given the authorization from Congress to do so, I'm not yet ready to accept that on the basis of the current law that the Preisdent is acting in direct contravention to Congress's will. In fact, in light of the extraordinarily broad language of the AUMF, I find it to be a barely colorable argument that the Congress did not expect the President to gather electronic intelligence on Al Qaeda, if such intelligence led in to the United States. I'm giving credence to BDS here, but that's really a bit much. Perhaps you've forgotten what things were like 7 days after 9/11, but I haven't.

As an aside, you might want to check your case law again regarding whether Youngstown is a controlling precedent -- even the President and the Attorney General don't contest that.  So, again, to say the least, you're doing your readers a disservice when you try to dismiss out of hand someone who claims Youngstown is controlling precedent.  From reading your blog post, one would think that you're analysis was straightforward and uncontroversial.

Any analysis of course begins with Youngstown, but then, there's a sense in which you could say that the analysis of every statute begins with Marbury. Heck, Dames and Moore began with Youngstown, but the entire point is that it's a more recent precedent, and that it qualified the holding of Youngstown when it comes to foreign affairs. Insofar as the proposition is pretty axiomatic, I don't exactly see what the controversy is supposed to be.

Now, in response to Steve Z's comment downthread - if I have more time later I'll revisit it, but again, I'm not sure if I'm supposed to be scared off of the AUMF argument by being called a "true believer." It's all well and good, in the current climate, to suppose that Congress was being very careful and circumspect with the authority they were giving the President. In the wake of the Dubai deal, that would be a very reasonable presumption. However, it's not even colorable when one considers that the AUMF was passed 7 days after 9/11. Perhaps you cannot remember what it was like when the fire was still smoldering under the buildings, when the Congress was being evacuated daily from anthrax threats - both the language of the statute and the clear intent of Congress at the time was to tell the President, "You do whatever the heck you have to do to stop these people." Now, in retrospect, many of the ankle-biters would like to pretend that it wasn't that way for political gain, but I'm not buying it, because I remember the mood of the country, the mood of Congress, and the speeches they were all giving at the time.

Suppose an invader actually landed forces in the US. I assume we could hold a debate about what to do about it and who could do what to whom ... :^)

I look at it from a straight forward sort of way. Sepration of powers, if Congress doesn't like what the executive is doing they have the right to impeach. If Congress doesn't like what a judge is doing, they likewise impeach the judge or rearrange the court structure. But Congress can't diminish the power of either by passing laws that limit the power of either other branch. There is no sacred place for the judicary in the whole sepration of powers battle.

After all, who is going to actually run the war, Judge Judy?

I understand the IANAL thing (although some very quick googling tells me you're a 1L at Vandy, right?), but if we're going to take off our lawyer hats for a second, the following sentence (clause) is extremely suspect:

"In fact, in light of the extraordinarily broad language of the AUMF, I find it to be a barely colorable argument that the Congress did not expect the President to gather electronic intelligence on Al Qaeda, if such intelligence led in to the United States."

The massively overwhelming evidence from Congress suggests that, no, this is not the case, that Congress had no intention of granting the President the power to do this. We can be lawyers and say that Dames & Moore requires the result that you want -- although I seriously doubt Dames & Moore does this -- but I really don't see how it's possible to claim that Congress clearly intended to authorize the President to do this when a) no Member has even now said that that's what they were trying to do, and the surprise of many Members suggests otherwise; and b) they amended FISA in several other ways in the PATRIOT Act, leaving this one out (surely a Congress that intended to amend FISA to give the President new non-warrant wiretapping authority would've codified it, given that they codified less serious other things, right?).

The massively overwhelming evidence from Congress suggests that, no, this is not the case, that Congress had no intention of granting the President the power to do this. We can be lawyers and say that Dames & Moore requires the result that you want -- although I seriously doubt Dames & Moore does this -- but I really don't see how it's possible to claim that Congress clearly intended to authorize the President to do this when a) no Member has even now said that that's what they were trying to do, and the surprise of many Members suggests otherwise;

You are clearly mistaking the ex post feigned shock of certain Congresscritters against a currently unpopular President for ex ante and legitimate shock when the AUMF was originally passed. I thought I made that clear.

b) they amended FISA in several other ways in the PATRIOT Act, leaving this one out (surely a Congress that intended to amend FISA to give the President new non-warrant wiretapping authority would've codified it, given that they codified less serious other things, right?).

Again, from Dames and Moore:

[Congress] cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act. Such failure of Congress specifically to delegate authority does not, "especially... in the areas of foreign policy and national security," imply "congressional disapproval" of action taken by the executive. On the contrary, the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to "invite" "measures on independent presidential responsibility."

"That" being both that Congress can't be expected to laundry list, and that the attitudes of obstructionist Democrats have changed from their initial unity with the President since they decided it would be more politically successful to nix everything he wants to do.

The problem with the "Democrats switched is that no Republican has said "that's what we meant," either, and several quite prominent Republicans, Specter among them, have said that they didn't intend this at all. Some have said that it's unconstitutional, sure, but no one in either party suggests that they actually intendeed it. I note your objection, and it has some merit, but it's only a mitigator. Your claim that my position is "barely colorable" seems particularly weak if the only argument mustered in its support is "your argument is potentially not as strong as it could be."

As for the laundry list, this is something that I, in turn, thought that I made clear. In the absence of a specific statute granting authority, FISA specifically proscribes any electronic foreign intelligence surveillenace. This is something that is just not present in Dames & Moore, and makes the passage you quoted inapplicable. In any case, I suspect that you continue to retreat to the legal arguments because the factual case against your position is so damning. No evidence that anyone thought that they were doing it, lots of amendments passed to FISA without this huge change being codified. Something's "barely colorable," but I don't think it's my argument.

Perhaps this will convince you. Why, we might ask, were all the amendments to FISA amendments to the actual code chapter and section(s) of FISA? Because FISA requires, in its text, that all amendments to FISA be amended directly to FISA. See 18 USC Sec 2511. This provision is intended to strengthen the act against implicit repeals, and to force a real debate whenever the government wants to change FISA (and, again, this is quite a change we're talking about). Since the AUMF does not purport to amend FISA in the relevant chapter and section, it can't be an amendment to FISA.

Maybe I'm the only one who thinks this is right. But no! The DOJ agrees, too, in its letter in reply to the letter from the law professors. The DOJ concedes that that provision is applicable, but claims that the AUMF implicitly repealed that requirement. Legally speaking, this is a pretty far out claim to make; implicit repeals are not looked on with any favor. Moreover, a Dames and Moore analysis would have to take into consideration that Congress has taken measures to prevent the accretion of presidential wiretapping authority outside of FISA. Practically speaking, it makes the case that Congress actually intended not only to amend FISA, but to repeal the procedural safeguard against non-deliberation, when it amended FISA in several other places several days later, almost impossible to believe.

...but PWG* would experience a Rennaissance, and save their sorry butts....for a while...

*People with Guns

Assuming that there is authority that makes the distinction between procedural and substantive limitations, and assuming that in the context of the current scheme (about which we still know little) FISA is still a minor imposition on the President's inherent authority, you might have a point.  I'll confess ignorance on the former (though I'm not certain that such a distinction is warranted; as Congress arguably can't impose procedural safeguards on the President any more than the President would be able to issue an executive order requiring that all laws be signed in blue, rather than black ink) but I'm much less sure about the latter.  I'll concede for the sake of argument that FISA is merely a "procedural" law, even though it can effectively bar a President from being able to spy upon "this foreign enemy but not that one."

As has been pointed out repeatedly, FISA is a 1970s-era statute purporting to function in the 2000s.  I can easily see a situation where the vast amounts of information that comes in from a cell phone makes FISA's requirements impracticable, even with a 3-day retroactivity provision.  My understanding is that a FISA warrant requires a mountain of paperwork, which may simply be impossible to obtain within 3 days for hundreds of numbers found in a lost cell phone.  In other words, in practical terms, the procedural limitation may amount to a substantive one in this context.  And I don't concede that the fact that FISA warrants are routinely granted means that the Court is a mere rubber stamp; it may well be the case (as I understand from a friend with some experience in the area) that people simply don't go to the FISA court without a pretty good idea that they are going to be successful (such statistics are about as useful as statistics showing that civil Plaintiffs disproportionately lose appeals when compared to Defendants).

To make an analogy to a different inherent power, I can imagine that Congress has the authority to require that pardons be in writing, rather than oral, and signed by the President in his original hand in order to take effect (again, I'm not conceding the point, but it strikes me as at least reasonable).  I can't imagine, however, that the Congress would have the right to ensure that the pardons are signed 12 times, once per month, over the course of a year, in order to ensure the Presidnet REALLY means what he says.  Such a law would be "procedural" on its face, but would obviously spill over into the nature of a "substantive limitation."  It is altogether possible (and again, I'm no expert) that FISA is the latter rather than former type of "procedural" law in this context.

Finally, while I think you have a reasonable argument, I don't think that georgia10 is making such subtle points (indeed, I'm not sure he's EVER made a subtle point; he's right below ol' Armando in the screed-o-meter).  His argument really does seem to be that the Congress may indeed substantively circumscribe the inherent powers of the executive, as he states repeatedly (through an amazingly redundant post).

Specter's argument that FISA may be unconstitutional is legally untenable.  In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952), the Supreme Court held that Congress could indeed define the counters of the President's inherent authority.

The court went on to conclude that even if the President is asserting an inherent power, that does not preclude Congressional action.  The Constitution explicitly grants Congress the power to make laws affecting all Constitutional powers, including those implied by the vesting of Executive power

The Constitution unequivocally gives Congress the right to regulate all powers "vested" in the Constitution, and that includes the inherent power claimed by President Bush.  Congress chose not to abdicate its constitutional powers in 1978, and it cannot chose to do so now.  

The Youngstown case, particularly Justice Jackson's famous concurrence, really does imply that Congress may legislate substantive rules for governing conduct of the armed services.  For example, the entire Uniform Code of Military Justice is an act of Congress.  So was the recent McCain amendment specifying new anti-torture restrictions in prisoner interrogation.

Consider what John Roberts had to say about Youngstown in such a context:

Senator LEAHY: Do you agree that Congress can make rules that may impinge upon the President's command functions?

Judge ROBERTS. Certainly, Senator. The point that Justice Jackson is making there is that the Constitution vests pertinent authority in these areas in both branches. The President is the Commander in Chief, and that meant something to the Founders. On the other hand, as you just quoted, Congress has the authority to issue regulations governing the Armed Forces, another express provision in the Constitution. Those two can conflict if by making regulations for the Armed Forces, Congress does something that interferes with, in the President's view, his command authority, and in some cases those disputes will be resolved in Court, as they were

in the Youngstown case.

[BTW, the Dames & Moore case you cite did essentially adopt Jackson's Youngstown framework.   But the facts there actually involved a situation where the President and Congress were substantially in accord.]

As Jackson's opinion said, when the President acts contrary to the will of Congress, "Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject."

So if there is doubt, it is up to the courts to resolve.  And according to Justice Jackson, the courts should follow congressional intent unless the legislation is found unconstitutional.

The court applied Youngstown in the recent Hamdi v Rumsfeld case.  When the executive branch claimed exclusive authority over detention of a citizen seized as an enemy combatant on a foreign battlefield, the court rejected that separation-of-powers claim, 8-1.  (Only Justice Thomas agreed with the administration, and his dissent indicated that he thought the court should defer to the other two branches.)

The plurality opinion in Hamdi cited Youngstown, and said: "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."

The Supreme Court never has ruled on the constitutionality of FISA, either facially or as-applied.  If the President wants to assert that FISA can't restrict him on constitutional grounds (or, for that matter, if he wants to assert his risible claim that the 2001 AUMF authorized the NSA surveillance) all he has to do is initiate a test case so the courts can vindicate such claims.

The path to such a test case open to DOJ, which alone has convenient standing in the FISA courts to bring the case.  Sen. Specter has challenged Alberto Gonzales to bring such a test case, but has been rebuffed.

But the administration's entire strategy in this matter has been to avoid judicial review.  Gonzales can count to nine, and he knows he would lose decisively if the matter ever came before the court.  If the justices had to confront that constitutional question squarely, the vote would likely be 8-1 or 9-0 against the President.

That is why Bush is afraid to tell it to the judge.

Leon, I respect your good common sense and the logic of your arguments in just about every one of your articles on RedState. I realize that in this item you are assessing the NSA activity with your "I'm studying law" hat on and I appreciate that, it is interesting.

So don't misunderstand that it has nothing to do with your article when I say that we really need to find some way to allow this war to be fought by soldiers with weapons rather than by lawyers with briefs (or boxers as you choose.) It's small wonder that many people don't see this as a war, they see it as some d*mn courtroom drama. Dueling briefcases at 20 yards.

</rant<br&gt
</threadjack - with my apologies

And I have to admit that I didn't get through your entire post, and didn't read what georgia10 said, but you quoted Jackson as saying:

Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system

Now isn't that what is being complained about at dailykos and the like?  That they feel that the congress is abdicating their constitutional responsibility to scrutinize what the President is doing?  I think that they know that what Feingold is doing is ultimately a stunt, but what they want is to start a debate that leads to some kind of investigation into where the law vs. the constitution is.

It is all well and good for everybody to have an opinion, but at some point there is going to have to be some sort of ruling, and that is going to be the only opinion that matters, and it will likely be imoprtant for a long time...

Is the difference between "We should be very careful and suspect about claims of inherent authority" and "there is no such thing as inherent authority."

On places like dailykos I see a lot of reference to the "unitary executive theory."  There it is painted as being the theory that "the president can do whatever he wants, whenever he wants."

How is what they are up in arms about different than the "inherent authority" that you refer to?  I like yours better.  It sounds much more reasonable.

To me it comes down to checks and balances, and in this case I do get the feeling that the congress is ceding a little of its power by not having an investigation or scrutinizing this.  I think that is one of the problems that you have when one party controls both branchs.  Party loyalty interferes with one of the things that makes this county strong and great.  I don't know that the President overstepped his authority, but I don't think we should be afraid to discuss or confront the matter.  

"That" being both that Congress can't be expected to laundry list, and that the attitudes of obstructionist Democrats have changed from their initial unity with the President since they decided it would be more politically successful to nix everything he wants to do.

The problem with the "Democrats switched is that no Republican has said "that's what we meant," either, and several quite prominent Republicans, Specter among them, have said that they didn't intend this at all. Some have said that it's unconstitutional, sure, but no one in either party suggests that they actually intendeed it. I note your objection, and it has some merit, but it's only a mitigator. Your claim that my position is "barely colorable" seems particularly weak if the only argument mustered in its support is "your argument is potentially not as strong as it could be."

I can only assume from this comment that either you haven't been paying attention to politics for the last 25 years, or you haven't paid attention to anything I've ever said if you expect me to trust Arlen Specter's honesty - or indeed, his loyalty to this particular President. FWIW, he's the same guy out there claiming that if FISA restricts the President's power to do this very thing, then it's unconstitutional.

As for the laundry list, this is something that I, in turn, thought that I made clear. In the absence of a specific statute granting authority, FISA specifically proscribes any electronic foreign intelligence surveillenace. This is something that is just not present in Dames & Moore, and makes the passage you quoted inapplicable.

I don't think that you understand what was at issue in Dames and Moore. The President suspended wholesale the claims of American citizens against the Iranian government (and they were legion) by executive order. To roughly analogize, it would be like him declaring all lawsuits against tobacco manufacturers to be suspended by executive order. The actions of Carter and Reagan were not just antithetical to a statute, they were patently unconstitutional in the absence of a Congressional grant of such authority (since Constitutionally, the President gets zero say in the scope of federal jurisdiction - it is indeed a question specifically reserved for Congress).

In any case, I suspect that you continue to retreat to the legal arguments because the factual case against your position is so damning.

I've yet to see a fact which is even troubling to my case. I see lots of assertions everywhere, that tend to ignore what the reality seven days after 9/11 was. Need I remind you that the Congresscritters themselves were being evacuated from their offices on a regular basis? Trust me, if Bush had asked for legal permission to hang Al Qaeda members from the Statue of Liberty and light them on fire, he would have gotten it. And thus you find a grant of discretionary authority which authorizes the President to do whatever the heck he wants, but also (and this is important, I really shouldn't have to repeat this) since he was required to use this force against people who "he determin[ed]" were responsible for the 9/11 attacks, he was also authorized to do what was necessary to collect this information.

No evidence that anyone thought that they were doing it, lots of amendments passed to FISA without this huge change being codified. Something's "barely colorable," but I don't think it's my argument.

Again - the word of the Critters you quote is currently less than zero, and the very proposition of Dames and Moore is that authorization which is passed that's pretty close suffices when it comes to the sphere of foreign affairs.

Perhaps this will convince you. Why, we might ask, were all the amendments to FISA amendments to the actual code chapter and section(s) of FISA? Because FISA requires, in its text, that all amendments to FISA be amended directly to FISA.

It is rather unpersuasive, since I've never claimed that it was an amendment to FISA. I've claimed that it was "otherwise provided by statute." Everybody's favorite true believer SDOC agrees that the AUMF counts in that regard, but you're on a roll, so don't let that stop you.

Since the AUMF does not purport to amend FISA in the relevant chapter and section, it can't be an amendment to FISA.

There's a compelling point that's coming along at any point now, I can feel it.

The DOJ concedes that that provision is applicable, but claims that the AUMF implicitly repealed that requirement. Legally speaking, this is a pretty far out claim to make; implicit repeals are not looked on with any favor.

Indeed, and so says Youngstown. In fact, the analogies between FISA (in the present kerfluffle) and the Taft-Hartley Act (in Youngstown) are stunning. Nonetheless, the entire point of Dames and Moore is that, when examining such claims of implicit authority w/r/t foreign affairs, the President gets the exact opposite presumption that he gets w/r/t domestic affairs: namely, we presume that Congress meant to give it to him. An honest assessment of Congressional intent on 9/18 would have yielded the same result.

To find people who don't know what they're talking about on dKos. The unitary executive theory does not speak to the scope of executive power whatsoever, but rather who is responsible for taking care that the laws of this country are faithfully executed. Constitutionally, that's the President. In other words, believers in the unitary executive theory have nothing to say whatsoever about Youngstown, but they object to Humprey's Executor and (most especially Morrison v. Olson.

When it comes to the question of "inherent authority," which is an entirely separate question from the "unitary executive theory," there is no question that the President has some inherent authority in the Constitution (to do those things which are specifically spelled out in Article II - like appointing justice to the Supreme Court). One of those things that the President has the inherent authority to do is to be Commander-in-Chief of the armed forces. Reasonable people can disagree about how far that authority stretches. Reasonable people can't disagree that there is such a thing as "inherent authority."

I fully realize that the preceding sentence had no relevance to georgia10 whatsoever, but I thought I should throw it out there anyway.

I really appreciated that.

I was one of the people evacuated from a House Office Building on September 11th, then again because of anthrax. I don't need to be told what it was like to be in Washington, D.C.; that memory's not leaving me anytime soon.

There's not much use in going argument by argument anymore; I can see where your biases lie. No one is credible except a Bush loyalist. That the Bush White House didn't want to ask for the specific authorization because they were afraid they wouldn't get it? Not relevant. The fact that this incredibly important amendment to FISA wasn't mentioned at all while several other FISA amendments passed more or less by acclamation, that there was such a need for secrecy that only four members of Congress were notified, doesn't alter your opinion that members of Congress must've had this in mind. And they needed to have it in mind to overrule it, because there are express provisions of FISA that your interpretation obliterates. (In addition to the ones previously mentioned, there's 50 USC 1811, which provides that the President may surveil without warrants for 15 days following a declaration of war; the idea that the AUMF authorized more than a formal declaration of war is tendentious at best.)

I do want to respond to your new Dames & Moore argument, though. First, your analogy is inappropriate, and I'm sure you know why; suspending tobacco claims is purely domestic, and suspending claims against a foreign nation is not. The proper analogue to your tobacco spying is the president using the NSA to spy on purely domestic criminals. Second, you don't seem to have fully read the case; as Rehnquist correctly notes, executive settlement of claims against foreign nations has a long pedigree, even without statutory authorization. Dames & Moore, 453 U.S. at 682-86, citing United States v. Pink, 315 U.S. 203 (1942). You haven't identified a difference, you've identified a similarity and then tried to make a false analogy.

I'm going to stop posting in this thread because your arguments have devolved into dehumanizing people for CYA purposes. If you want to continue for whatever reason, my e-mail's my website name at gmail. Good luck with your legal education.

You can go right ahead and construe "I don't trust Arlen Specter" as "I don't trust anyone but a Bush loyalist," if you want to. Were you saying something about "dehumanizing people" for the purpose of "CYA"?

That the Bush White House didn't want to ask for the specific authorization because they were afraid they wouldn't get it? Not relevant.

Again - it is credible to suggest that he wouldn't get it now. Not so much then. The reality is that he didn't want to tip the hand of exactly what he was doing. Which goes to most of the rest of that paragraph.

I do want to respond to your new Dames & Moore argument, though. First, your analogy is inappropriate, and I'm sure you know why; suspending tobacco claims is purely domestic, and suspending claims against a foreign nation is not.

Actually (although the larger point of Dames and Moore is, we would agree, that the President has a much wider latitude in foreign affairs), the answer to this question is "not really."

From Art. III, section 2[1]:

The Judicial Power shall extend to all cases, in Law and equity, arising under this Constitution, the Laws of the United States... and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects

There is no distinction, Constitutionally speaking - the courts have explicit power to hear such cases just the same as they do tobacco cases. Insofar as anyone has the power to alter the power to hear these cases, that power is reserved explicitly for Congress (From Art III, Sec. 2[2]:

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The proper analogue to your tobacco spying is the president using the NSA to spy on purely domestic criminals.

This literally makes no sense. The President suspended valid legal claims by United States citizens, reserved to the judicial branch by Article III, in a unilateral action. In other words, the President deliberately usurped the authority of Congress, without the authority of Congress, and the Supreme Court specifically recognized that he did not have authorization from Congress to do what he did. But he did have authorization to do some stuff that was pretty similar.

Now, when the court looked at this exact same question in Youngstown - namely, Truman had the Taft/Hartley act which he could have used, but he refused to do so because Congress passed it over his veto. Youngstown said, "The fact that Congess gave you authority to do something very similar to this creates a presumption that they did not give you the authority to do exactly this, and therefore you may not do it." In Dames and Moore, Congress had given the President the authority to do some things under the IEEPA and the Hostage Act, but (rather germanely) not what he actually did. The court looked at Youngstown and said, "For foreign affairs, we create the exact opposite presumption, and if Congress gave you some very similar authority, we'll say, 'close enough.'"

I'm going to stop posting in this thread because your arguments have devolved into dehumanizing people for CYA purposes.

If calling people out for denying the manifest political reality of the week immediately following 9/11 is "dehumanizing people," then you've nailed me spot on.

that no amendment to FISA can usurp. Your posts indicate that you are somewhat knowledgeable on this subject, so Im sure you are aware of the Sealed Case, etc and dont need for me to get you the links. So I haven't. Then again, that you were in DC and still dont understand what war is, speaks volumes.

Congress can impeach or shut up, just as FDR's and Lincoln's could have but didnt, or they can open their mouths and remove all doubt and lose votes with each syllable, as Dems did in 2002, and 2004.

Lets vote!

http://www.townhall.com/opinion/columns/terencejeffrey/2006/03/15/189902.ht
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