Lawyers At Their Worst II

Last Friday, I posted a link to, and critiqued in fairly broad strokes, the DOJ's memo defending the NSA eavaesdropping program. Courtesy of O'D, Mechelle and the New York Review of Books, here is a link to a letter by a group of "liberal" constitutional scolars (Tribe, Dworkin, etc.) responding to an earlier version of that same defense.

While I like the scholars' conclusion a lot more than DOJ's, I was disappointed by both the arguments and the writing.

For one thing, there are entirely too many "ly" words in this for my taste. Tribe et al. are very nearly as guilty of "arguing by adverb" as is DOJ.

For another thing, most of the memo is devoted to critiquing the very much secondary argument that the AUMF provides an exception to FISA. The real issue here is the Constitution and I would have expected a bunch of constitutional lawyers to focus on that rather than the far more technical issues of statutory construction. Moroever, rather than addresing the substance of the AUMF head on the "scholars" rely instead on such legal technicalities as this:

First, and most importantly, the DOJ's argument rests on an unstated general "implication" from the AUMF that directly contradicts express and specific language in FISA. Specific and "carefully drawn" statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the question of domestic warrantless wiretapping, including during wartime, and it could not have spoken more clearly.

There are two problems with kind of argument. First, its highly technical nature deprives it of much force in a battle of Constitutional proportions. Surely, this is not a case that turns on canons of stautory construction. Second, this argument implicitly concedes that there is a "conflict" between FISA and the AUMF. One gets to the question of whether the specific controls over the general only if there is a conflict between the specific and the general. And, for there to be a conflict implies that the AUMF can plausibly be read to have authorized warrantless domestic eavsdropping. But if that point is conceded, then the entire statutory argument fails becuase, as DOJ points out, FISA itself contains an exception under which electronic survellience that would otherwise violate FISA can neverthelss be lawfully conducted if it is authorized by some other statute. In short, if the AUMF does, -- or can be read to -- authorize the NSA program then, there is no conflict between FISA and the AUMF. And, if there is no conflict, the canon of construction regarding the specific and the general has no relevance.

The point that one wishes the scholars had made is the much simpler one: a Congressional authorization "to use all necessary and approrpiate force" against the "nations, organizations or persons" who "planned, authroized, commited, or aided" the 9/11 attacks cannot be read to authorize domestic eavesdropping. An authorization to use force (to say nothing of an authorization to use only that force that is necessary and appropriate) does not expilictly authroize domestic eavesdropping. Thus, if this issue does turn on an issue of statutory construction, the "canons" that would be relevant would be those describing how to determine what (if any) requirments or authorizations are implicit in a Conressional act that does not explicitly speak to the question at issue. Traditionally, the lodestone of that inquiry has been Congressional intent, and I think it would be very difficult to demonstrate a Congressional intent, at the time the AUMF was passed, to authorize warrentless domestic spying. But, if one wants (as the scholars appear to want) to argue about stautory construction, it seem to me that this is the area one has to address rather than arguments over whether the specific controls over the general.

My third disappointment is the scholars' failure to address in any meaningful way the core Constitutional issues: (a) does Article II of the Constitution provide the President with the power to institute a program of domestic spying that is beyond Congress' power to control, and (b) if so, what (if any) limits on that power are imposed by the Fourth Amendment.

As to the first of these issues, the scholars offer only the following ipse dixit:

Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise.

The latter clause in this sentence is just plain wrong. Not only does DOJ "suggest" that Article II provides the President with powers in this area that are beyond Congressional reach, that contention is actually the core of its entire argument: but for the AUMF, they argue, "the consitutionality of FISA . . . would be called into very serious doubt."

The first clause, marked by the telltale "plainly," presumes the answer to the very question to be decided.

As to the role of the Forth Amendment, the scholars and the DOJ are in a "does too/does not" kind of an argument. DOJ says that the NSA program falls within the "special needs" exception to the warrant/probable cause requirment; the scholars say it does not. While I want to believe the scholars, DOJ actually does a far better job of arguing the point. After all, as DOJ points out, the courts have approved warrantless and indeed suspicionless searches of drivers at sobriety checkpoints and of students engaged in extracurricular activities. If these types of situations fall within an exception to the Fourth Amendment, why not warrantless eavesdropping in an effort to prevent another 9/11? To me, this is actually an argument against the Constitutionality of those other types of searches rather than in favor of the the NSA program. However, if you agree that sobriety checkpoints and mandatory drug testing for student athletes do not violate the Fourth Amendment, then it is a little hard to argue that warrantless eavesdropping is barred given the significantly greater governmental interests involved. In any event, if such an argument can be made, it certainly was not made by the scholars.

But by far the biggest disappointment, though, was the scholars' failure to even mention the implications of the DOJ argument. If DOJ is right and Article II does give the Presdident eavesdropping powers that are beyond Congressional (or presumably judicial control) what happens? To me, this is by far the most compelling reason for rejecting the argument, for if the President has any power that is beyond the control of either of the other Branches the whole concept of checks and balances among three co-equal branches would appear to be in grave danger.

Perhaps my alarm at this prospect is due to the fact that I am missing something obvious to the scholars, steeped as they are in Constitutional law and history. Perhaps, the alarm is justified and the scholars failed to discuss this issue becuase they can not believe the Administration is making the argument that it seems to me quite clearly to be making. Perhaps this issue was a victim of the fact that the letter was written by a committee. In any event, though, for a group of men and women such as this to write a rebuttal of the Administraion's claims without even reaching the implications of those claims is a disappointment. The scholars appear, at least, to have become so throughly engrossed in the leaves and branches that they cannot see even the tree, let alone the forest.