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December 23, 2005
Tempest in a Top-Secret teapot
I haven't posted anything on the NSA surveillance of overseas communications, mainly because it seems so obvious to me that the opposition to it is so blatantly partisan. The hysterical shrieking from the Democrats lessened not one decibel when it was revealed that Presidents Clinton and Carter had authorized warrantless wiretaps, too.
Draw your own inferences.
However, yesterday I heard an interview with noted Constitutional Law scholar Cass Sunstein, a liberal of long standing. Sunstein told Hugh Hewitt:
CS: If the Congress authorizes the president to use force, a pretty natural incident of that is to engage in surveillance. So if there's on the battlefield some communication between Taliban and al Qaeda, the president can monitor that. If al Qaeda calls the United States, the president can probably monitor that, too, as part of waging against al Qaeda.
HH: Very good. Part two of your analysis ... If ... whether or not the AUMF does, does the Constitution give the president inherent authority to do what he did?
CS: That's less clear, but there's a very strong argument the president does have that authority. All the lower courts that have investigated the issue have so said. So as part of the president's power as executive, there's a strong argument that he can monitor conversations from overseas, especially if they're al Qaeda communications in the aftermath of 9/11.
So what I guess I do is put the two arguments together. It's a little technical, but I think pretty important, which is that since the president has a plausible claim that he has inherent authority to do this, that is to monitor communications from threats outside our borders, we should be pretty willing to interpret a Congressional authorization to use force in a way that conforms to the president's possible Constitutional authority. So that is if you put the Constitutional authority together with the statutory authorization, the president's on pretty good ground.
So far, so good. Sunstein, no fan of the Bush White House, then follows this train of thought to its logical conclusion, one that requires no advanced degree in legal studies, just a desire not to be blown to pieces by our enemies.
CS: [J]ust as in the Hamdi case, it's easy to remember the Court said that that was specific authorization to detain our enemies, so too a natural incident of war is the power to engage in surveillance of our enemies. So it would be odd, I think, to understand the authorization not to include the power to engage in surveillance, when al Qaeda is communicating with people who are unfriendly to us.
Get it? The power to wage war includes the ability to gain knowledge of the enemy's plans, aka, "surveillance."
It gets more interesting. What happens if Congress tries to eliminate a portion of the President's ability to wage war, a traditional aspect of executive-branch perogatives?
HH: Now if ... would your analysis change if the Congress reconvened, and then passed a specific law saying we did not mean that. Would that ... this is for the non-lawyers in our audience ... would that in any way affect his inherent Constitutional authority?CS: No. And then we'd have a huge question, which is whether Congress has the Constitutional power to negate the president's authority to monitor communications from our enemies. And that would be a big and unresolved Constitutional question. It would be unfortunate if the Congress of the United States stopped the president from doing something which Congress already probably is best understood to have allowed the president to do in the authorization to use force.
Now, the question that has the ACLU foaming at the mouth: Does the Fourth Amendment require a warrant for electronic monitoring of foreigners?
HH: Now let's move over to the Supreme Court. On Sunday, I posted at my blog, United States V. United States District Court of Eastern Michigan, also known as the Keith Case, because I believe it affirmatively shows that the Supreme Court has not contradicted the president's power here. Do you agree with that analysis?
CS: Yes. That's clearly right. What that Court says is that for domestic surveillance that don't involve foreigners or foreign threats, the president needs a warrant. But now we're onto the last question, which is whether there's a Fourth Amendment requirement of a warrant. And the Supreme Court has never said that in circumstances like this.
As far as the media coverage of this tempest in a teapot goes, color me (and the prof with the gigantic brain) unimpressed.
HH: Professor Sunstein, have you ever been contacted by mainstream media about this controversy?
CS: A lot. Yeah.
HH: And have you spent a lot of time trying to walk the reporters through the basics?
CS: Yes ....
HH: Let me ask. Have you been quoted in any papers that you've seen?
CS: I don't think so.
HH: Do you consider the quality of the media coverage here to be good, bad, or in between?
CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance ... this might be proved wrong ... but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is.
There's more to the interview over at Radio Blogger; check it out.
Posted by Mike Lief at December 23, 2005 07:33 AM