Topic: Constitution, the Law, and the Courts

NSA Spying and the Supreme Court

As I noted in an earlier post, I’m supportive of Bob’s legal argument that the President’s NSA surveillance program is illegal and unconstitutional. (My level of certainty on this: moderate). But for me this doesn’t settle the matter. There’s a separate question: What should the Supreme Court do about it?

For me, this is the hard but all important question. In Baker v. Carr, the Court suggested (in so many words) that justices may want to avoid resolution of a constitutional question if, for example, there is a significant chance another branch might ignore its decision. The reason for this seemingly weak-kneed approach to constitutional adjudication is straightforward. The Supreme Court, a tribunal of nine geriatric lawyers, doesn’t have much muscle. It can’t arrest a recalcitrant President. It relies on the force of its mystique as the oracle of our fundamental law and its soft political power to confer public legitimacy on political branch actions. That’s generally enough to compel the grudging respect and deference of Congress and the President. But in extraordinary times, its possible that a headstrong President convinced of the rightness of his mission, and backed by popular support and a waffling Congress, might simply ignore the Supreme Court. If that happens too often, the Court risks losing its power to command. And a disrespected Court that is repeatedly ignored is far, far worse for the long-term protection of liberty than a Court that occasionally ducks the wrong fight.

So what should the Court do about the NSA surveillance program?

There are seven red flags counseling caution:

  • First, early polls suggest the program seems to be popular with the public (although, admittedly, this may change).
  • Second, the actual tangible harm these programs pose to individuals is rather slight.
  • Third, Congress to date seems willing to go along with the program.
  • Fourth, these programs are difficult to detect: Secret surveillance programs are just that—they are instituted in the shadows by relatively small, committed cadres of spies.
  • Fifth, they respond in part to fears of a catastrophic risk: the possibility, however remote, of a nuclear terrorist attack on American soil.
  • Sixth, some surveillance, such as mass data profiling, appear nearly impossible to undertake under standard interpretations of statutory surveillance warranting procedures.
  • Seventh, reasonable people can disagree about the wisdom of this kind of surveillance.

    Given these six variables: popularity, slight immediate harm to individual citizens, congressional acquiesence, secrecy, high stakes, difficulty complying with current law, and reasonable policy arguments for executive policy, there’s a good reason to think the administration might ignore a Supreme Court that orders the President to take surveillance programs offline.

    What should the Court do then if presented with a legal challenge?
    Here’s one obvious alternative: It might simply leave the question to lower courts for the time being. The Court doesn’t have to take every constitutional challenge that comes its way. Lower courts have passed on the scope of the President’s foreign affairs authority to conduct warrantless national security surveillance—without Supreme Court review. (See, for example, United States v. Smith, 321 F. Supp. 424 (C.D. Cal. 1971)).

    If the Court stayed above the fray, lower courts would likely disagree on the merits of the President’s arguments. The administration would press ahead, citing the line of lower court precedent in its favor. But another, competing line of precedent would remain—casting doubt on the President’s actions, raising the cost of the program to the executive, and giving support to his political opponents. At a later date, those decisions might be affirmed when the risk of presidential resistance has faded (perhaps due to a change in administration or a change in control of Congress).

    But the Court might press against the President in areas where the President is on less secure ground: Indefinite detention of American citizens as enemy combatants without a civil trial is one area where the President’s legal arguments are weak, the harm to individuals is large, public opinion isn’t wholly on the President’s side, and congressional acquiesence isn’t a given. A Supreme Court opinion on this point might bolster political will against executive power.

    The Court might also encourage private resistance to the surveillance program by taking appeals on collateral issues–such as the scope of the state secrets abstention doctrine, which counsels in favor of dismissing claims in which “state secrets” are central to determination of liability. As George Washington University’s Orin Kerr has noted, the administration is likely to invoke the doctrine in civil litigation against telecommunications companies. Narrowing the doctrine will expose telecommunciations companies to greater risk of civil liability for handing over its data–deterring perfunctory corporate cooperation with the NSA.

    Should the Supreme Court follow this route–or something like it?

    Absent a change in the permissive political climate on the surveillance issue, I reluctantly tend to think yes (Degree of confidence: low).

  • NSA: Coda

    Let me make two brief and (I hope) final points in response to Roger Pilon’s post of earlier today.

    First, Roger asserts that the executive and legislative branches would not be “co-equal” if Congress is permitted “to restrict the president’s powers, as with FISA.” “Congress,” he adds, would then be “supreme, the president its mere agent.” Not true. Before any restrictive measure can become law, it must be passed by Congress and signed by the president. FISA was of course signed by President Carter. Neither successive presidents nor successive legislatures are required to re-validate previously enacted, unexpired statutes. Moreover, FISA was implicitly re-signed by George W. Bush, who helped craft the FISA amendments that are included within the PATRIOT Act and prescribe surveillance warrants.

    Second, Roger notes that Congress can always avail itself of the “power of the purse … and simply cut off funds for projects.” My response is threefold: (1) A constitutional regime that would allow Congress to eliminate a project altogether, but not restrict a project, is quite simply incoherent – especially if the project arises, as Roger insists, out of an inherent presidential power. (2) The NSA surveillance program is secret to all but a few members of Congress. Accordingly, Congress might have to de-fund the entire NSA in order to pinpoint and de-fund one program, the scope and function of which is mostly unknown. (3) Even if Congress could de-fund the program itself, that would throw the baby out with the bathwater. Republicans and Democrats alike conjecture that much of the NSA program may be necessary and effective, albeit illegal, in combating terrorism. The responsible remedy is not to de-fund an essential program, but either to change its implementation to comply with the law, or change the law to authorize the program.

    NSA déjà vu again

    With his usual precision, my colleague Bob Levy, in his latest NSA post, has zeroed in on the basic question I put to him: “How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government?” He grants that the president has inherent powers; but so does Congress, he adds, and if Congress expressly restricts the president’s powers, as with FISA, that “is persuasive when deciding whether the president has overreached.”
     
    Not so fast. The problem with that is that the branches are then no longer “co-equal.” Rather, Congress is supreme, the president its mere agent—precisely the point I made in our recent debate when I spoke of Congress’s post-Vietnam rewrite of the Constitution in foreign affairs, much as the New Deal Congress did with domestic arrangements.
     
    Bob points more precisely, however, to the Necessary and Proper Clause as the source of Congress’s power over the president. But that clause—to reduce a very complex issue to its essence—was written, in the context of the Articles of Confederation, to enable Congress to give effect to its and the other branches’ enumerated powers. As Chief Justice Marshall said in McCulloch v. Maryland (1819), the clause authorizes means that are “really calculated to effect any of the objects entrusted to the government,” like surveillance for national security purposes. When that power is used “improperly” to restrict the inherent power of another branch, serious separation-of-powers issues arise.
     
    Congress does have a power to accomplish that end, however: It’s the power of the purse. It can simply cut off funds for projects—yet even here there are separation-of-powers questions that courts have never resolved. Given that the public seems to support the NSA program by 2 to 1, however, Congress is not likely to do that. This leaves us with Fourth Amendment issues, and as I said last time, that’s the business of the courts.
     
    Two quick final points on Bob’s most recent post: First, the “parade of horribles” he presents—detention, tribunals, etc.—raises complex treaty and international law issues that are quite different, requiring separate analysis. Second, the animating sentiment at the time of the founding may have been fear of executive power—return of the king. By the time of the framing, however, after 11 years of experience with self-government, the Framers had a far more subtle understanding. As Madison put it in the Virginia ratifying convention, “The sword is in the hands of the British King. The purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.”

    NSA Redux

    In his latest posting, my colleague Roger Pilon restates several of his arguments in defense of the NSA’s warrantless domestic surveillance.  Each of Roger’s points has been addressed in detail in our recent debate and in my Senate testimony.  For those who prefer a nutshell version of my response, here it is:

    Roger asks, “How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government …?”  I do not dispute that the president has inherent powers, especially during wartime.  The question is not the existence, but rather the scope, of those powers.  And because Congress too has wartime powers, an express restriction by Congress, like the FISA statute, is persuasive when deciding whether the president has overreached. 

    Indeed, the Constitution specifically authorizes Congress to shape the  president’s inherent powers.  Article I, section 8 empowers Congress to “make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 

    If, as Roger insists, warrantless domestic surveillance is incidental to the president’s inherent powers, so too are sneak-and-peek searches, roving wiretaps, library records searches, and national security letters – all of which were vigorously debated in deciding whether to reauthorize the Patriot Act.  Could the president have proceeded with those activities even if they were not authorized by Congress?  If so, what was the purpose of the debate?  Why do we even need a Patriot Act? 

    President Bush has also asserted “inherent powers” to justify military tribunals without congressional authorization, secret CIA prisons, indefinite detention of U.S. citizens, enemy combatant declarations without hearings as required by the Geneva Conventions, and interrogation techniques that may have violated our treaty commitments banning torture.  Are those activities outside the president’s wartime authority?  If not, what are the bounds, if any, that constrain his conduct?

    The animating sentiment at the time of the founding was fear of executive power – return of the king.  Against that backdrop, it’s remarkable that the president, with Roger’s apparent approval, now claims to wield unilateral powers with no safeguards – in effect, an irrebuttable presumption of authority, unfettered by Congress or the courts, to do just about anything that he pleases in battling terrorists.

    NSA: Keeping One’s Eye on the Constitutional Ball

    Followers of Cato’s Constitutional Studies department know that my colleague Bob Levy and I have a respectful disagreement over the constitutionality of recently revealed NSA surveillance practices. Consider this the latest installment in that discussion….

    In an earlier Cato@Liberty post, Bob finds it “ominous” that the NSA might be “monitoring the content of wholly domestic calls.” But he adds, “When communications from and to a US person in the US are monitored, that’s domestic surveillance, no matter whether the party on the other end is inside or outside of the US (original emphasis).”

    I have to disagree. Perhaps Bob thinks that the monitoring of international calls, as we would normally call them (one party outside the United States), is also ominous, because he next says, “Since Bush believes that warrantless domestic surveillance is permissible regardless of FISA’s contrary provisions, we shouldn’t be surprised if the NSA has much more data (including content) than USA Today has uncovered.”

    This focus on domestic/nondomestic, pressed by the Bush critics, comes from the language of FISA—and points to yet another problem with the statute. After all, the calls we want most to monitor are those that go to and come from al-Qaeda sleeper-cells in the United States. Insofar as FISA burdens that “domestic” surveillance, it frustrates the very purpose of surveillance.
     
    In Nov. 2002, the FISA Court of Review cut through that distinction when it spoke of the president’s “inherent authority to conduct warrantless searches [leaving it open whether inside or outside the United States] to obtain foreign intelligence information,” adding that the “appropriate distinction” to be drawn in balancing the government’s interest against individual privacy interests is between “ordinary crimes and foreign intelligence crimes.” Unlike with the former, where punishment and deterrence are the main purposes, the government’s concern with foreign intelligence crimes, the court said, “is overwhelmingly to stop or frustrate the immediate criminal activity.” It can hardly do that effectively if it has to run to court for a warrant at every turn—nor did the court hold that it had to since that issue was not before the court.
     
    The deeper issue with FISA, however, is the constitutional separation-of-powers question: whether Congress has the authority to restrict an inherent power of the president. How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government that has been exercised, with no objection, by every president since George Washington? Congress, by mere statute, can no more restrict the inherent power of a president—or a court, or a state, for that matter—than it can restrict the constitutional rights of an individual. If a line is to be drawn between the power of the president and the rights of the people, it is for the courts to do it. And if the courts will not or cannot do so (because of standing or other such problems), then the matter is ultimately political, not legal.

    Scotland Ups the Nanny Ante

    By my measure, the United States trails the United Kingdom by about three to five years when it comes to aggressively paternalistic public policy. Get ready for this one:

    First the Scottish Executive wanted people followed home if they breached the smoking ban.

    Now there are fears its health crusade could spell the end of traditional pie and chips in Scots pubs.

    In two years time, bar and pub owners will be asked to provide ‘sensible eating’ policies as a condition of their licences.

    […]

    Glasgow MSP Bill Aitken complained: “Scotland will soon be a place where what’s not compulsory is forbidden.

    “The Executive should butt out of people’s lives. It’s still—only just—a matter for individuals what they choose to eat.”

    And Paul Waterson, head of the Scottish Licensed Trade Association, said: “There’s potential for extreme interference and major problems.”

    I’ll say. 

    Such ideas aren’t unprecedented here in the United States, of course. A few months ago, a physician wrote an op-ed in the Chicago Tribune calling on the Surgeon General to set national portion size standards for restaurants—and to enforce them.

    A Heckuva Job

    Yesterday, President Bush said “the privacy of ordinary Americans is fiercely protected in all our activities.” Why didn’t he just say, “I think federal agencies are doing a heckuva job protecting the privacy of ordinary Americans”? An argument can be made that terrorists pose a unique threat, etc., but stop it already on how fierce the state is protecting our privacy.