The "Terrorist Surveillance Program" - A Personal Polemic

As a prefatory remark, I should say that much credit belongs to Anonymous Liberal and Glenn Greenwald for their analysis in helping me to really understand these issues.

------------------------------------------------------------

As if it were not enough that our government is conducting a secret “surveillance” program of dubious legality, must they constantly hedge and lie about it? But it is politics as usual in Washington as Attorney General Gonzales recently released a letter to the Senate Judiciary Committee following up and clarifying his oral testimony about the NSA domestic surveillance program. The letter interestingly notes that the President authorized the program before the Patriot Act even passed. Also, it strongly suggests that the administration initially relied on an Article II inherent power justification, and the AUMF argument that the administration currently puts forward is pure revisionism. Because there are far too many covert reasons to be concerned about the state of personal privacy, perhaps it is beneficial that the administration made such a colossal blunder. It brings privacy concerns deservedly to the forefront of our consciousness. However, in order to stake a claim to that benefit, we must attack the foundations of the government’s reasoning.

We should early reject any serious claim that the government conducted this surveillance for purely sinister domestic purposes. It is probably true that concerns about terrorism predicated the program, and it was designed to combat that threat. Cynics may believe terrorism to be pretextual, but that seems wrong. However, the reality remains that the NSA program is vastly over-reaching and Gonzales ultimately fails in his justification efforts.

The administration chiefly relies upon the two-headed hydra of Article II and the Authorization for the Use of Military Force Resolution (AUMF). The Department of Justice’s position has likely evolved from an initial reliance on John Yoo’s now infamously radical expansive theory of Presidential wartime powers to a relatively toned-down reliance on Congressional mandate. Gonzales claims that the shift simply reflects that the Department’s “legal analysis has [not] been static over time,” whereas I suggest instead that the shift underscores the larger problem – the government’s disrespect for privacy and the rule of law. No doubt, the administration switched tacks as a result of the Court’s Hamdi ruling which seemingly narrowed the scope of the inherent power claim, while simultaneously opening the door to an AUMF argument. O'Connor's majority opinion expressly does not reach the Article II argument, but does offer dicta rejecting a plenary power in the President:

In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. 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)

The large question remains, then, how far can we take the Court's embrace of the AUMF as Congressional authorization for wartime activities. Though the detention of a Taliban soldier was "necessary and appropriate force," in no way is it clear that the wiretapping of domestic/international calls meets that standard. And O'Connor is quite explicit in limiting the holding to the specific facts:

We conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied §4001(a)’s requirement that a detention be “pursuant to an Act of Congress” (assuming, without deciding, that §4001(a) applies to military detentions).

But fancy legal reasoning does not obviate the necessity for explaining how such a program might be authorized on dubious legal premises in the first place.

Flying literally in the face of FISA, the President authorized an action actually criminalized by that statute. Any reasonable reading of Jackson’s Youngstown concurrence suggests that in such a case the President’s “power is at its lowest ebb,” though arguably there is more wiggle room in questions of foreign affairs (traditionally the domain of the Executive). In Youngstown, Justice Jackson suggests a 3-tiered framework for measuring the constitutionality of presidential actions. The first category involves the President acting with direct Congressional authorization and such actions are entitled "the strongest of presumptions." The second category involves a Presidential action in the "zone of twilight" where there has been neither Congressional grant nor denial of that power. Such actions get a closer level of scrutiny than the previous tier. Finally, there are actions which are in direct violation of Congressional mandate. These activities must be "scrutinized with caution" and the President's power is "at its lowest ebb."

Still, the administration persists on conflating a default Presidential power with an exclusive one in making its inherent power claim. Worse than negligent, such rhetoric is simply intellectually dishonest. But really it is Hamdi that puts a nail in the Article II coffin, circumscribing the administration’s Unitary Executive Theory. O’Connor’s majority opinion soundly rejects the administration’s argument that the President has plenary power in a state of war, and reaffirms the foundational separation of powers regime.

Even allowing that the administration built the “Terrorist Surveillance Program” on the foundation of the AUMF, significant legal questions arise. For instance, the dispositive statement that the President is “authorized to use all necessary and appropriate force” occurs under the heading of “Authorization for the Use of United States Armed Forces.” It seems plausible to argue that “appropriate force” refers to “military” force and I think it difficult to label the NSA “armed.” At the same time, I am sympathetic to the proposition that pursuit of foreign intelligence is a necessary component in the effective management of a war. However, to make an argument, as Gonzales does, that the AUMF puts the President in the Youngstown Category I is sheer folly, especially in light of the plain meaning of FISA. After all, the Congress was not contemplating the authorization of a surveillance program when they passed the AUMF. They thought they were already dealing with that issue in the adoption of the USA Patriot Act.

Perhaps the most puzzling of all is the current malaise concerning the reauthorization of the Patriot Act. What seems to elude much of the mainstream media is the apparent inconsistency between the administration’s insistence of the dire necessity of the Patriot Act and the legal position concerning the “Terrorist Surveillance Program.” An even cursory glance at the Patriot Reauthorization Act reveals that it is chiefly a series of FISA amendments. It baffles as to why the President calls this so “vital to the war on terror” – this revision of a statute that he maintains he has no duty to obey. Even more perplexing is his statement that this Act will serve to “safeguard the civil liberties of the American people.” Something stinks here. The Patriot Act/FISA seeks to restrain an administration that claims the power to avoid such restraint. And that same administration simultaneously maintains the absolute necessity of reauthorizing said restraint. No doubt, Gonzales recognizes the delicious irony even while dancing around it. Frankly, it makes one wonder whether the entire Patriot Act were not a smokescreen to conceal the real “war on terror.” [1]

Finally, a clarion call for cynics sounds loudly in A-G Gonzales’s letter. He explicitly represents that he testified “only as to the legal basis of the activity confirmed by the President” and reiterates that the “interception of purely domestic communications” would require a different legal analysis. (p. 5) This slippery rhetoric oozes of lawyerly parsing and almost screams that warrantless domestic spying occurs, even while remaining “unconfirmed.” [2] Clearly, I can't say one way or the other that purely domestic, non-terrorist-related, spying is definitely occurring. My deep suspicion is that it is. But that is subject to interpretation, of course, being simply an inference - an inference dying to be made - but an inference nonetheless.

Of course, this controversy is really just the tip of the iceberg. Robert O’Harrow’s “No Place to Hide” unveils a prescient vision of the future information-industrial complex. With the explosion of data-mining, biometrics, visual recognition software and lavish governmental patronage, “electronic surveillance” is rapidly becoming a fixed reality. Hopefully, the exposure of our government’s deceit and illegal machinations will help to unveil the wizard. Even now the ACLU and Electron Freedom Foundation pursue legal actions to pull back the curtain. [3] We can only hope that it is not too late.

[1] Credit to Anonymous Liberal for this insightful analysis.
[2] See Washington Post article for further speculation
[3] Courtesy of “The Nation” – Tim Shorrock (March 20, 2006).