DOJ Justification for NSA Wiretapping

Rosenthal, Lawrence rosentha at chapman.edu
Sun Jan 22 13:09:54 PST 2006


Thanks, Marty.  I will confess that I am over my head here; I formerly ran appellate litigation and legal policy for the City of Chicago, and I certainly did not deal with these areas of constitutional law.  Still, let me try one more time to explore the question whether the Take Care Clause gives the President authority to violate statutes he regards as unconstitutional.  There seems be a distinction, drawn by the Constitution itself, between the "Constitution" and the "laws." Article III, section 1, and the Supremacy Clause, for example, treat the "Constitution" and the "laws" as distinct.  The Take Care Clause, however, obligates the President to faithfully execute only the "laws."  That suggests to me that the Constitution places an unqualified obligation on the President to execute the laws. You properly respond that the President also swear to preserve, protect and defend the Constitution.  Perhaps that means that the President can ignore statutes that he thinks violates something other than his own prerogatives under Article II.  But doesn't the Take Care Clause suggest that Article II itself rejects the view that the President has inherent constitutional authority power to violate a statute on a matter relating to national defense?  Aren't the "inherent" powers of the President under Article II limited by the Take Care Clause?
 
Larry Rosenthal
Chapman University

________________________________

From: Marty Lederman [mailto:marty.lederman at comcast.net]
Sent: Sat 1/21/2006 2:58 PM
To: Rosenthal, Lawrence; conlawprof at lists.ucla.edu
Subject: Re: DOJ Justification for NSA Wiretapping


Nothing's "settled," Larry!  But it is the settled view of the Executive Branch, and I think it's right:  I don't see any reason not to read "Laws" to include the Constitution -- and treaties, too (and perhaps even customary international law).  In any event, Article II also requires the President to take an oath to preserve, protect and defend the Constitution.
 
The question of defending the constitutionality of laws in court is distinct from the question of executing the laws.  The Executive often executes and then declines to defend laws of dubious constitutionality -- or even to attack the laws in Court.  Famous examples include Lovett, Chadha, Morrison v. Olson, to a certain extent Buckley v. Valeo (in which SG Bork filed two briefs, one supporting the statute, the other . . . not so much so); Dickerson, Turner Broadcasting (in the first Bush Administration); Metro Broadcasting, etc.  Indeed, I'm aware of only one case (other than the oddity of Buckley) where the President publicly opined that a law was unconstitutional and the Department nevertheless defended it in court -- the 18-year-old vote provision in Oregon v. Mitchell.  You're correct that there have been the occasional OLC memos stating, imprecisely, that DOJ is "obligated" to defend the constitutionality of federal statutes where any "reasonable" defense is available -- and that is the general practice, followed in the overwhelming majority of cases -- but it's not an obligation, and there are plenty of counterexamples (some of which are listed above).
 
 
 
----- Original Message ----- 
From: "Rosenthal, Lawrence" <rosentha at chapman.edu <mailto:rosentha at chapman.edu> >
To: "Marty Lederman" <marty.lederman at comcast.net <mailto:marty.lederman at comcast.net> >; <conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu> >
Sent: Saturday, January 21, 2006 5:46 PM
Subject: RE: DOJ Justification for NSA Wiretapping


Thank you so much for your thoughtful answer, Marty.  At the risk of quibbling, I do have one follow-up question on the Take Care Clause.  It requires that the President "take care that the laws be faithfully executed," not to "take care that the Constitution and laws" be faithfully executed.  Should that text be fairly read to remove from the President the power to decide for himself which laws are unconstitutional and therefore are to be ignored?  Is it in fact settled that the President has the power to decide not to enforce laws he believes to be unconstitutional?  On a related note, from my days at DOJ, I believe I recall several OLC opinions stating that the executive is obligated to defend the constitutionality of all federal statutes unless no nonfrivolous defense can be mounted, althought I do not believe that any potential statutory infringements on Article II prerogatives is discussed in these memos.
 
 
 
Larry Rosenthal
Associate Professor of Law
Chapman University

________________________________

From: Marty Lederman [mailto:marty.lederman at comcast.net]
Sent: Sat 1/21/2006 1:28 PM
To: Rosenthal, Lawrence; conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu> 
Subject: Re: DOJ Justification for NSA Wiretapping


Thanks for contributing, Larry.  Both excellent questions.  Let me start with the latter, because it's a constitutional law question:
 
If, as the DOJ memo argues, FISA impermissibly infringes the President's power under the Commander-in-Chief Clause, then the President is not constitutionally obliged to abide by FISA:  The Take Care Clause includes the obligation to faithfully execute the Constitution.  He might have a constitutional obligation to try to secure a statutory amendment, or to act in such a way as to bring the issue before the courts for review -- that's a complicated question, the subject of an extensive literature, and canvassed in great and very helpful detail by my former colleagues Dawn Johnsen and David Barron in complementary articles in Law & Contemporary Problems a few years back.  But the really important Article II issue here is not nonenforcement, but the merits of the unorthodox DOJ Commander-in-Chief argument that FISA is unconstitutional.
 
Moving to your first, AUMF-based question:  Your question raises at least two separate points.
 
First, even as to suspected members of Al Qaeda, the President is likely acting on the basis of a "reasonable suspicion" of membership, rather than on a heightened standard of evidentiary assurance, such as probable cause.  I'm not sure that's inconsistent with the AUMF.  The phrase "he determines" probably is best read only to require something like a "more likely than not" standard.
 
Second, and more importantly, even if the President is using a permissible evidentiary standard, the NSA program evidently extends to communications in which neither party is someone described in the AUMF.  As you note, all that is necessary under the NSA program as described is that one of the parties be a member of an organization affiliated with, or currently "supporting," Al Qaeda.  Thus, NSA is intercepting at least some communications that do not involve "nations, organizations, or persons that [the President] determines planned, authorized, committed, or aided the [9/11] terrorist attacks."  We don't know, of course, what percentage of calls are of this nature.  But you are correct that even if the AUMFdoes authorize deviations from FISA, and even if it does repeal by implication 18 USC 2511(2)(f) (which sets out FISA and Title III as the "exclusive means" of electronic surveillance) -- neither of which is the case, in my view -- it would not authorize the full scope of the NSA program, which apparently goes well beyond the terms of the parties covered by the AUMF.  I have more on this point here:  http://balkin.blogspot.com/2005/12/another-reason-why-aumf-argument-is.html <http://balkin.blogspot.com/2005/12/another-reason-why-aumf-argument-is.html> .
 
I hope that's responsive to your inquiry.
 
----- Original Message ----- 
From: "Rosenthal, Lawrence" <rosentha at chapman.edu <mailto:rosentha at chapman.edu>  <mailto:rosentha at chapman.edu <mailto:rosentha at chapman.edu> > >
To: <conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu>  <mailto:conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu> > >
Sent: Saturday, January 21, 2006 3:56 PM
Subject: DOJ Justification for NSA Wiretapping


* 
Greetings:  I am new to the list (and new to the teaching of law), and, with considerable trepidation, I wish to ask this impressive group about the DOJ memorandum on warrantless wiretapping.   It strikes me that there is some semantic difference between the finding necessary under the joint congressional resolution authorizing the use of force on which DOJ relies to support presidential authority to engage in wiretapping and the finding necessary for warrantless wiretapping under the NSA program.   Even assuming that wiretapping of noncombatants qualifies as the "use of force" within the meaning of the resolution, the resolution authorizes the President to use force only "against those nations, organizations, or persons that he determines planned, authorized, committed, or aided the terrorist attacks."  The wiretapping program, however, permits surveillance under something that may be, at worst, much like a Terry v. Ohio reasonable suspicion standard, or, at best, like a probable cause finding, but in either case the finding is made by NSA and not the President and it is based on something other than an actual determination of responsibillity for the attacks or membership in a group responsible for the attacks -- whether NSA has a "reasonable basis to conclude that one party to the communication is a member of al Queda, affiliated with al Queda, or a member of an organization affiliated with al Queda."  Parenthetically, I should add that although DOJ has provided little information to flesh out the "reasonable basis" standard, I infer that it is something less than probable cause.  If NSA were using probable cause, it could arguably seek warrants under FISA, or it could have sought authorization for an expanded program involving the issuance of judicial warrants from Congress in the Patriot Act (which did expand other wiretapping authority) or otherwise.  But NSA could not ask Congress for legislation authorizing the issuance of warrants on less than probable cause (even aside from possible political difficulties with such a proposal) because the Fourth Amendment expressly prohibits the issuance of warrants on less than probable cause (although the Court has recognized a rather unprincipled exception for administrative warrants).  In any event, the use of force resolution seemingly does not authorize the use of force against anyone that NSA has a "reasonable basis" to conclude was behind the attacks or affiliated with those that were; it permits the use of force only when the President has determined that an organization or individual was behind those attacks.  And if, like Justice Scalia, one sticks with the words of the resolution, without trying to divine its spirit or policy, authorization for the program seems wanting.  Without statutory authorization, the program would violate FISA.  I am wondering whether others share my view about the interaction between the joint resolution and the NSA program.  There are a great many things I may be overlooking.  My second and related question is, assuming a FISA violation, can there be any authority directly under Article II to violate a statutory prohibition that the President believes is necessary for national defense in light of the Take Care Clause of Article II? The admonition that the President take care that the laws are executed "faithfully," at least to my eye, does not admit of an exception for laws that the President believes unconstitutionally infringe his inherent powers or for laws that relate to national security.  The DOJ memorandum, however, does not discuss these issues under the Take Care Clause. 
 
Larry Rosenthal
Associate Professor of Law
Chapman University
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