presidents, war, and the Nixonian moment

Harry Pohlman pohlman at dickinson.edu
Mon Dec 19 14:38:04 PST 2005


Perhaps Judge Kollar-Kotelly should have done more than she did, but  
a criminal referral would have been a difficult step because of the  
following language from the 2002 decision of the FISA Court of  
Review: "The TRUONG court, as did all the courts to have decided the  
issue, held that the President did have inherent authority to conduct  
warrantless searches to obtain foreign intelligence information.  It  
was incumbent upon the court, therefore, to determine the boundaries  
of that constitutional authority in the case before it.  We take for  
granted that the President does have that authority and, assuming  
that is so, FISA could not encroach on the President's constitutional  
power."  Could a FISA judge ignore this statement of the law?  The  
judge could not rely on the KEITH decision because that decision was  
confined to intelligence cases involving domestic threats, not  
foreign threats.  After all, if wiretapping international calls  
inside the United States is enough to make the NSA surveillance a  
domestic intelligence investigation, then FISA itself violated KEITH  
because FISA permits the monitoring of communications completely  
internal to the United States.

Harry Pohlman
Dickinson College



On Dec 19, 2005, at 5:09 PM, Scarberry, Mark wrote:

> I am not convinced that the AUMF and/or the President's inherent  
> powers justify an end run around FISA. Nevertheless, it was not a  
> completely secret program, nor was Congress left without remedy. It  
> seems that Congressional leaders of both parties were informed  
> about the surveillance program. If any of them had wanted to stop  
> the program, they could have taken action, including revealing the  
> program on the floor of the House or Senate and seeking to prohibit  
> funding of it. (Even the threat of such action might have been  
> enough to stop the program.) Apparently they did not want to stop  
> it or thought they would pay too high a political price if they  
> tried to do so.
>
>
> A prior post (sorry, I've forgotten by whom) stated that the  
> existence of the program was brought to the attention of the FISA  
> court as a result of a desire by the Justice Dept. to use  
> information from the program in one or more warrant applications.  
> Presumably such an application for a warrant would present an  
> Article III case or controversy which would then have allowed the  
> court to make a criminal referral, if the court were convinced that  
> the surveillance constituted a criminal violation. Thus it seems  
> that neither the legislative branch (at least the leaders of the  
> legislative branch) nor the judicial branch (at least the head of  
> the FISA court) chose to try to stop the program.
>
>
> Perhaps someone will know whether one of the Congressional  
> intelligence committees could have convened secret hearings to  
> investigate the surveillance program and to provide some oversight  
> of it.
>
>
> Note: the AUMF is available at http://frwebgate.access.gpo.gov/cgi- 
> bin/getdoc.cgi?dbname=107_cong_bills&docid=f:sj23enr.txt.pdf.
>
>
> Mark S. Scarberry
>
> Pepperdine University School of Law
>
>
>
> -----Original Message-----
> From: Stephen M. Griffin [mailto:sgriffin at law.tulane.edu]
> Sent: Monday, December 19, 2005 1:28 PM
> To: Sanford Levinson
> Cc: Conlawprof at lists.ucla.edu
> Subject: RE: presidents, war, and the Nixonian moment
>
>
> Re the discussion of presidents and wrongdoing during wartime --
>
> >From a constitutional point of view, this is the worst thing Bush  
> has done.  Unlike torture, where the chain of responsibility was  
> clouded, here Bush is front and center as the responsible party.   
> It's in writing...and it's secret!  Shades of Nixon.
>
>
> The rationale is extremely weak.  There is no standard argument  
> that somehow AUMF implicitly amended FISA, a very specific statute  
> aimed at a very specific target.  And there is no caselaw in  
> support of the commander in chief power allowing the president to  
> override an otherwise valid law.  It is already apparent that the  
> president's rationale is literal nonsense to members of Congress  
> from both parties because it denies Congress's power to formally  
> check executive discretion via statute.
>
>
> The secrecy of the action, combined with the amazing breadth of the  
> claimed authority recalls not Lincoln or Truman, but clearly  
> Nixon.  We are back with (quoting roughly) "if the President does  
> it, it's constitutional."
>
> I also seem to remember: "During my second term, I threw down the  
> gauntlet and challenged the Congress to epic battle..."
>
>
> Sandy -- remember "The Specious Morality of the Law?"  I do!
>
>
> Steve Griffin
>
> Tulane Law School
>
> sgriffin at law.tulane.edu
>
>
>
> ________________________________
>
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Bob Sheridan
>
> Sent: Mon 12/19/2005 2:50 PM
>
> To: Sanford Levinson
>
> Cc: Conlawprof at lists.ucla.edu
>
> Subject: Re: presidents, war, and *statutes*
>
>
>
>
> So does this make GWB an "activist" president?
>
>
> I watched him say on MSNBC last night with Brian Williams that the  
> U.S.
>
> Constitution is "a living document," just like the new one in Iraq, or
>
> vice versa, which should have dropped Scalia out of his easy chair.
>
>
> rs
>
> sfls
>
>
>
>
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