Friends And Allies Of Rome: Cass Sunstein Sets The Record Straight
This day has been brought to you by the letter "H" today. Yes, Marcie and I went through the the whole show today, commenting on various guests. It's easier on days like today; there isn't a lot going on in the afternoons. And we both listen to him, and admire the "Emperor of the Blogosphere." So, gather 'round fine men and women, and watch as Cass Sunstein, Professor of Law at Chicago University, sets the record straight for the Left. By the way, this man is a preeminent scholar in the Constitution; I'm good, but he's better.
HH: Yesterday, you heard me talking with my friend John Eastman, my colleague at Chapman Law School, and Erwin Chemerinsky, my longtime friend, one from the right, one from the left. And we were all agreeing that my guest, Cass Sunstein, is one of the go-to guys when it comes to Con law in the United States, and it's my pleasure to welcome Professor Sunstein to the Hugh Hewitt Show. Professor, great to have you on. Thanks for making the time.
CS: Thank you so much. It's my pleasure.
HH: Now, just a little bio here. You graduated from Harvard College in '75, and Harvard Law School in '78. Do you know Bob Rosenthal? He was my proctor as a freshman at Harvard.
CS: I don't know that name.
HH: I thought he was the managing editor of the law review the year that you were on it. But nevertheless, we'll come back to that.
CS: Big place.
HH: Now Professor, you're the author of the Con law textbook that many of us use in the classroom. You've written a great deal about this. Is it fair to describe you as a man of the left?
CS: I don't think so. On some issues yes, but I don't consider myself that.
HH: How about a liberal?
CS: That's fine.
HH: Okay. A liberal. That's how I usually call liberals, so we get them on the ideological spectrum. But nevertheless, you wrote a post which I have linked to at HughHewitt.com, called Presidential Wiretapping Disaggregating the issues, which I think is very useful, and I'd like to walk through it. First, did the authorization for the use of military force from 2001 authorize the president's action with regards to conducting surveillance on foreign powers, including al Qaeda, in contact with their agents in America, Professor?
CS: Well, probably. 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.
Does the president have the authority to act as he did? Mr. Sunstein is, indeed, correct. That's not specifically clear. However, the argument can be made that he is still engaged with the intelligence agencies during a time of war. Even if they are under the command of another, the president still commands the person in charge. He does, technically, have control of that agency. The president is on excellent ground with the arguments combined, which is how we've been interpreting this from the start. The AUMF from Congress activates his powers, which include--in wartime--to gather intelligence on our enemies.
HH: And then I want to jump out of your analysis for a moment, and go to the steel seizure case, and to Justice Jackson's concurrance, because a lot of the analysis is saying the president is acting contrary to Congressional intent, citing some FISA sections, which I think are wrongly read. But nevertheless, if you read the AUMF the way you do, and the Constitution the way it is plausibly read, that would put us in the highest zone of presidential authority, under Justice Jackson's three-part analysis, wouldn't it?
An outstanding point that I have read from other "blawgs" (law blogs) on this subject. And one I would tend to agree with Hugh on. His three part test is cited below:
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.
Justice Jackson was correct, and that wisdom still rings true for the president today in the powers the president possesses, and how far those powers reach.
CS: That's right. And just 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.
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?
No, and yes, I'm one of those "non-lawyers" out here. I'm not one yet, but will be soon. Even in my "lay" position, I can interpret, and I have thus far, that based on the two clauses un Article II that the president has this 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.
I disagree with this. The Congress can't limit his scope by cutting away at his Constitutional powers. A war is in effect. To tie his hands now on the intelligence angle would present a clear and present danger to the nation, thereby tying his hands to act contrary to their order.
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. The lower court seemed to suggest otherwise.
And the lower court is wrong. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. I cite the Fourteenth Amendment because it specifically details what a citizen is in the eyes of the law. A foreign agent in the US isn't a citizen, therefore the requirement of a warrant doesn't apply to them. A citizen, as Prof. Sunstien noted, requires one, not a terrorist.
HH: That's why I wanted to come back and do your middle one in the middle, because now we've got the Constitutional issues out on the table. There are some arguments the other way. I want to be fair to people who are arguing, because they haven't been really fair to the president's position. You could make arguments the other way. But by no means does the...in my opinion, do they have remotely as strong a case as the advocates for the Constitutionality of what the president has done. Do you agree with that assessment, Professor?
CS: Well, what I'd say is that the Department of Justice is the president's lawyer, and they have a duty, the lawyers there, to protect the president's Constitutional prerogatives. I actually worked there myself around the same time that Chief Justice Roberts was in the Justice Department, and that's the Department of Justice's job to protect Constitutional prerogatives of the president. But in this case, it's not as if the Department of Justice is stretching badly to protect the president. It's not as in the what I think is the unfortunate torture memo, where the Justice Department really was stretching. Here the Department of Justice is making more than plausible arguments. If you put me to it, is the president right on this? It's very complicated. I think he has...he probably has the better argument. As you say, there are complexities.
HH: What year were you in the OLC, Office of Legal Counsel?
CS: In '81, under Carter and Reagan.
HH: Okay, so you actually had to deal with the use of force issue, surrounding the operation that went badly in the Iranian desert. Were you there at the time?
CS: I was there during some of the legal discussion. That's correct.
HH: You see, that's what I thought. And that would give you a very different view. I came into Justice as a special assistant to Smith doing the FISA work afterwards, and it gives me a different perspective on this. Now let's get to FISA. This is the hardest nut to crack, because we don't know the facts. And why are the facts important here?
CS: Well, if the president is just restricted to al Qaeda, and al Qaeda's friends, then he's on very firm ground under the authorization. If, on the other hand, the president has been engaging in wiretapping of people whose connection to al Qaeda is very uncertain and indirect, then the authorization is less helpful for him.
According to what has come out of those involved with this program--the president's "inner circle"--they have been focusing exclusively on al-Qaeda operatives in the US, and those that are assisting them. The president, provided this is true (I'm not saying it isn't; pardon my playing the devil's advocate here a bit), is on solid ground. If something pops up to show that isn't true, he may have some explaining to do depending on who became the unfortunate target of one of these surveillance sweeps.
HH: But the Foreign Intelligence Surveillance Act itself, I often hear...today, Lanny Davis, another one, said the president could have just gone to the FISA court. Why didn't he? And Vicki Toensing and others have been trying to explain they have a probable cause requirement, and they have some other technicalities associated with that process that make it cumbersome. Do you find...
CS: I think there are a couple of things going on there. It's not the most cumbersome thing in the world, but it is something that the president, when national security is on the line, isn't excited about having to go through a procedure where it's conceivable he's going to lose...unlikely, but conceivable. There's another point in the background, really, which if you were there, you know, which is that the president believes here that these are very sensitive Constitutional prerogatives. And this isn't a Republican or Democratic thing. This is something that cuts across political affiliations of the president. And so the notion that in a case as sensitive as this one, he is under a legal responsibility to go through something that may be more time consuming than appears, may be more leaky than appears. Even if he doesn't think it's likely to be leaky, that's something that a president is not likely to think is necessary.
The president made a comment in October of 2003: "I'm mindful of the filter through which some news travels, and sometimes you have to go over the heads of the filter and speak directly to the people and that's what we will continue to do." He was referring to the inherent media bias, and I think this is the primary reason why he went the way he did with this. He was afraid of leaks. His administration has faced more problems from leaks regarding national security than any president I can remember. He knew if the press got a hold of this they were going to run with it.
HH: So if we assume, and I do, that FISA is Constitutional, if it puts into place an arguably exclusive means of obtaining warrants for surveillance of al Qaeda and their agents in the United States, does the president's avoidance of that necessarily make him a law breaker? Or does it make the FISA ineffective insofar as it would attempt to restrict the president's power?
CS: Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.
Absolutely brilliant, and right in line with the train of thought at the Asylum. We have argued since the beginning that nothing can contermand the president's authority in wartime. That is, of course, as long as the courts interpret FISA as being in line with the Constitution. If they don't then the president has a valid argument for getting FISA deemed unconstitutional. See, nothing can trump the Constitution, and that includes laws enacted by Congress if they directly conflict with his power. In Federalist #78, Hamilton pointed out an important thing about the law.
"No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."
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: Who's contacted you, for example? The New York Times?
CS: Well, I wouldn't want to name specific ones. It's a little bit of confidentiality there, but some well known ones. Let's just say that.
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. As I recall, by the way, I was quoted in the Los Angeles Times, and they did say that in at least one person's view, the authorization to use military force probably was adequate here.
The MSM's coverage of this issue has been pitiful because they are speaking as though they are experts, and as Hugh pointed out with Jonathan Alter, he didn't even have the legal knowledge--lay, professional, or otherwise--to even be commenting on the subject. He was unfamiliar with what FISA actually stated, he had not read the cases involved in this argument, and poo-pooed the leak of this story. Granted, he admitted that if a crime had been committed the leaker should be prosecuted. We've already established a crime occurred. But to the MSM, their cavalier attitude in presenting "facts" to America is a journalistic felony; facts are facts only if they're true, and they're misconstruing the entire argument. As usual, we're left to clean up the mess after the MSM makes it.
HH: Do you think the media simply does not understand? Or are they being purposefully ill-informed in your view?
CS: You know what I think it is? It's kind of an echo of Watergate. So when the word wiretapping comes out, a lot of people get really nervous and think this is a rerun of Watergate. I also think there are two different ideas going on here. One is skepticism on the part of many members of the media about judgments by President Bush that threaten, in their view, civil liberties. So it's like they see President Bush and civil liberties, and they get a little more reflexively skeptical than maybe the individual issue warrants. So there's that. Plus, there's, I think, a kind of bipartisan...in the American culture, including the media, streak that is very nervous about intruding on telephone calls and e-mails. And that, in many ways, is healthy. But it can create a misunderstanding of a particular situation.
Working hand-in-hand with that misunderstanding, the MSM can twist the public's perception of this issue. A lot of uninformed people have been arguing with Hugh all week long about the NSA program, and how it violated civil liberties, where it didn't. People like to focus on this or that in this case, and refuse to look at the whole picture. Step back, investigate all the angles, including the one the press and the Left are benefitting from. The Times ran the story on the same day the Patriot Act vote was coming up, and caused the filibuster the Democrats enacted. The release was timed, which is probably why the authors faced such opposition from the editors on when it would be printed.
HH: The libertarian panic that you referred to, I actually believe that that probably did prompt a lot of the original egregiously wrong analysis. But now I'm beginning to be concerned that the media is intentionally ignoring the very strong arguments defending what the president did. Do you believe that's taking place?
CS: I don't like accusing anyone of intentionally ignoring anything. So I believe with respect to people, whatever their political views, you should have charity, and assume until it's proved wrong that they're acting in good faith. It's still early in this, by the way. And I think the tide is turning a little bit in terms of the legal analysis. If it turns out that this goes on for months, and facts don't come out that are worse than the facts we now have, then it looks...then it will look like a continuing panic, which would be worse than what we've seen just in a couple of days.
Again, this will fall to us to control and clean up. The malfeasance involved in this story from the MSM is all over it. Add the fact that they're not being truthful with the public, and you have the panic scenario that Prof. Sunstein hints at. When that panic takes hold, people will be arguing for the president to end such actions. This leads to us being more open to our enemies, which prevents the president from carrying out his Constitutionally-enumerated duties.
HH: Have you had a chance yet, Professor Sunstein, to review the William Moschella memo on the program that was sent today to Senators Rockefeller and Roberts, and Congresspeople Hoekstra and Harman?
CS: Yeah, I've read that.
HH: Did you find it persuasive?
CS: I thought it was good. It was a solid job. I thought there were a couple of things that, you know, these are the president's lawyers, and they're not going to be neutral. I think it was definitely more on than off. The analysis of the Fourth Amendment issue was brisk and conclusory. All that was said was that the Fourth Amendment requires reasonableness, and this is reasonable. Chief Justice Roberts would demand something a little bit better than that, as would any good judge. The analysis of the case you mentioned, that is the United States against United States District Court was...I guess the lawyers were just tendentious. But I don't think it was...I think it was a good, solid analysis. Better than what we've seen, let's just say, from Congress so far.
HH: All right. Now let's talk about how this gets to the courts for review, because I frankly don't see any way for this program to get to the courts for review, unless and until any of the information is used against the suspect, if that suspect is capable of actually finding that out. Do you see judicial review of this occurring in any way?
CS: You're completely right. You have to find someone who has standing to object to this. And so what you'd have to find is an American citizen whose been tapped, or intruded on in a way that results in harm. Now if someone's phone has been tapped, and there's been nothing done with it, there's an argument that there's standing there. But it's very possible this won't be litigated at all.
With everything being reviewed every 45 days with this program, one would think by now someone would have complained about being nailed by the surveillance. Even the Patriot Act had people claiming they were being illegally surveiled. None panned out, but there were accusations. I concur with Prof. Sunstein. We will be lucky to see this litigated.
HH: Let's turn, then, to the person who leaked it to the New York Times. I discussed this with Senator Jon Kyl last hour, Senator Cornyn yesterday. It is clear to me that a federal crime has occurred. Do you agree with that?
CS: I'm not sure. What's the statute that this would violate?
HH: The release of classified documents, and it's in 18USC something. I don't know. It's just that if something's classified, you cannot give it to someone.
That would be USC 18, Section 798 regarding espionage, and the release of classified information, cited below:
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
Shall be fined under this title or imprisoned not more than ten years, or both.
CS: And the existence of the program was itself classified?
HH: Yes.
CS: Well, then if so, absolutely.
HH: When you were at Justice, did you get the sense of compartmented information clearances, and all the briefings that went with that?
CS: Sure did.
HH: And were they as adamant in your years as they were in mine about the penalties that would attach to the release of such information?
CS: It was implicit. I mean, no one, when I was there, so far as I know, would even spend a second thinking of leaking classified material. That was the most obvious thing in the world. If you think about doing it, you've thought too much.
HH: And if...are you...
CS: It was a moral requirement, not a...when we were there, we wouldn't leak. It was a moral requirement. It wasn't we were afraid of crime, it was we wouldn't do something that was wrong.
Yet, these twits with the loose lips seem to have no moral guidance whatsoever to tell them that what they're doing is wrong. The media likes to portray this person as a patriot. A patriot is someone who does something on behalf of the nation that is beneficial to it. This was anything but beneficial. It was severely detrimental. Whoever did leak this information, and there should be an investigation into it, should be charged and prosecuted to the fullest extent of the law.
HH: I agree with you on that. And my question is do you think damage to the United States' national interest may have occurred as a result of the leak of this material?
CS: I think it might have. I really hope not, but I think it might have. I mean this is a program which...whose efficacy might well depend on its being secret. That would be...if so, then that would be very, very harmful.
HH: Professor Cass Sunstein, I want to thank you for spending a half hour with us. Very, very interesting conversation. I appreciate as well the law blog, and we'll continue to look forward to reading it. Maybe we can have you back as this unfolds.
CS: My pleasure. I enjoyed it.
HH: Thank you.
After listening to this interview this afternoon, and reading through it (now that Duane put up the transcript), I can say that I have a great deal od respect for this man. He is a brilliant lawyer, and no I'm not saying that because I agree with him, but because I can see how he thinks. I can understand where he is coming from. He is right on the money, and listening to him today, I felt like I was listening to a legal lecture on this topic with Prof. Sunstein and Hugh at once. It was a pleasure, and it will be even more pleasurable to watch the Left react tomorrow over his revelations about the legalities regarding the president's powers.
Publius II
This day has been brought to you by the letter "H" today. Yes, Marcie and I went through the the whole show today, commenting on various guests. It's easier on days like today; there isn't a lot going on in the afternoons. And we both listen to him, and admire the "Emperor of the Blogosphere." So, gather 'round fine men and women, and watch as Cass Sunstein, Professor of Law at Chicago University, sets the record straight for the Left. By the way, this man is a preeminent scholar in the Constitution; I'm good, but he's better.
HH: Yesterday, you heard me talking with my friend John Eastman, my colleague at Chapman Law School, and Erwin Chemerinsky, my longtime friend, one from the right, one from the left. And we were all agreeing that my guest, Cass Sunstein, is one of the go-to guys when it comes to Con law in the United States, and it's my pleasure to welcome Professor Sunstein to the Hugh Hewitt Show. Professor, great to have you on. Thanks for making the time.
CS: Thank you so much. It's my pleasure.
HH: Now, just a little bio here. You graduated from Harvard College in '75, and Harvard Law School in '78. Do you know Bob Rosenthal? He was my proctor as a freshman at Harvard.
CS: I don't know that name.
HH: I thought he was the managing editor of the law review the year that you were on it. But nevertheless, we'll come back to that.
CS: Big place.
HH: Now Professor, you're the author of the Con law textbook that many of us use in the classroom. You've written a great deal about this. Is it fair to describe you as a man of the left?
CS: I don't think so. On some issues yes, but I don't consider myself that.
HH: How about a liberal?
CS: That's fine.
HH: Okay. A liberal. That's how I usually call liberals, so we get them on the ideological spectrum. But nevertheless, you wrote a post which I have linked to at HughHewitt.com, called Presidential Wiretapping Disaggregating the issues, which I think is very useful, and I'd like to walk through it. First, did the authorization for the use of military force from 2001 authorize the president's action with regards to conducting surveillance on foreign powers, including al Qaeda, in contact with their agents in America, Professor?
CS: Well, probably. 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.
Does the president have the authority to act as he did? Mr. Sunstein is, indeed, correct. That's not specifically clear. However, the argument can be made that he is still engaged with the intelligence agencies during a time of war. Even if they are under the command of another, the president still commands the person in charge. He does, technically, have control of that agency. The president is on excellent ground with the arguments combined, which is how we've been interpreting this from the start. The AUMF from Congress activates his powers, which include--in wartime--to gather intelligence on our enemies.
HH: And then I want to jump out of your analysis for a moment, and go to the steel seizure case, and to Justice Jackson's concurrance, because a lot of the analysis is saying the president is acting contrary to Congressional intent, citing some FISA sections, which I think are wrongly read. But nevertheless, if you read the AUMF the way you do, and the Constitution the way it is plausibly read, that would put us in the highest zone of presidential authority, under Justice Jackson's three-part analysis, wouldn't it?
An outstanding point that I have read from other "blawgs" (law blogs) on this subject. And one I would tend to agree with Hugh on. His three part test is cited below:
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.
Justice Jackson was correct, and that wisdom still rings true for the president today in the powers the president possesses, and how far those powers reach.
CS: That's right. And just 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.
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?
No, and yes, I'm one of those "non-lawyers" out here. I'm not one yet, but will be soon. Even in my "lay" position, I can interpret, and I have thus far, that based on the two clauses un Article II that the president has this 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.
I disagree with this. The Congress can't limit his scope by cutting away at his Constitutional powers. A war is in effect. To tie his hands now on the intelligence angle would present a clear and present danger to the nation, thereby tying his hands to act contrary to their order.
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. The lower court seemed to suggest otherwise.
And the lower court is wrong. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. I cite the Fourteenth Amendment because it specifically details what a citizen is in the eyes of the law. A foreign agent in the US isn't a citizen, therefore the requirement of a warrant doesn't apply to them. A citizen, as Prof. Sunstien noted, requires one, not a terrorist.
HH: That's why I wanted to come back and do your middle one in the middle, because now we've got the Constitutional issues out on the table. There are some arguments the other way. I want to be fair to people who are arguing, because they haven't been really fair to the president's position. You could make arguments the other way. But by no means does the...in my opinion, do they have remotely as strong a case as the advocates for the Constitutionality of what the president has done. Do you agree with that assessment, Professor?
CS: Well, what I'd say is that the Department of Justice is the president's lawyer, and they have a duty, the lawyers there, to protect the president's Constitutional prerogatives. I actually worked there myself around the same time that Chief Justice Roberts was in the Justice Department, and that's the Department of Justice's job to protect Constitutional prerogatives of the president. But in this case, it's not as if the Department of Justice is stretching badly to protect the president. It's not as in the what I think is the unfortunate torture memo, where the Justice Department really was stretching. Here the Department of Justice is making more than plausible arguments. If you put me to it, is the president right on this? It's very complicated. I think he has...he probably has the better argument. As you say, there are complexities.
HH: What year were you in the OLC, Office of Legal Counsel?
CS: In '81, under Carter and Reagan.
HH: Okay, so you actually had to deal with the use of force issue, surrounding the operation that went badly in the Iranian desert. Were you there at the time?
CS: I was there during some of the legal discussion. That's correct.
HH: You see, that's what I thought. And that would give you a very different view. I came into Justice as a special assistant to Smith doing the FISA work afterwards, and it gives me a different perspective on this. Now let's get to FISA. This is the hardest nut to crack, because we don't know the facts. And why are the facts important here?
CS: Well, if the president is just restricted to al Qaeda, and al Qaeda's friends, then he's on very firm ground under the authorization. If, on the other hand, the president has been engaging in wiretapping of people whose connection to al Qaeda is very uncertain and indirect, then the authorization is less helpful for him.
According to what has come out of those involved with this program--the president's "inner circle"--they have been focusing exclusively on al-Qaeda operatives in the US, and those that are assisting them. The president, provided this is true (I'm not saying it isn't; pardon my playing the devil's advocate here a bit), is on solid ground. If something pops up to show that isn't true, he may have some explaining to do depending on who became the unfortunate target of one of these surveillance sweeps.
HH: But the Foreign Intelligence Surveillance Act itself, I often hear...today, Lanny Davis, another one, said the president could have just gone to the FISA court. Why didn't he? And Vicki Toensing and others have been trying to explain they have a probable cause requirement, and they have some other technicalities associated with that process that make it cumbersome. Do you find...
CS: I think there are a couple of things going on there. It's not the most cumbersome thing in the world, but it is something that the president, when national security is on the line, isn't excited about having to go through a procedure where it's conceivable he's going to lose...unlikely, but conceivable. There's another point in the background, really, which if you were there, you know, which is that the president believes here that these are very sensitive Constitutional prerogatives. And this isn't a Republican or Democratic thing. This is something that cuts across political affiliations of the president. And so the notion that in a case as sensitive as this one, he is under a legal responsibility to go through something that may be more time consuming than appears, may be more leaky than appears. Even if he doesn't think it's likely to be leaky, that's something that a president is not likely to think is necessary.
The president made a comment in October of 2003: "I'm mindful of the filter through which some news travels, and sometimes you have to go over the heads of the filter and speak directly to the people and that's what we will continue to do." He was referring to the inherent media bias, and I think this is the primary reason why he went the way he did with this. He was afraid of leaks. His administration has faced more problems from leaks regarding national security than any president I can remember. He knew if the press got a hold of this they were going to run with it.
HH: So if we assume, and I do, that FISA is Constitutional, if it puts into place an arguably exclusive means of obtaining warrants for surveillance of al Qaeda and their agents in the United States, does the president's avoidance of that necessarily make him a law breaker? Or does it make the FISA ineffective insofar as it would attempt to restrict the president's power?
CS: Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.
Absolutely brilliant, and right in line with the train of thought at the Asylum. We have argued since the beginning that nothing can contermand the president's authority in wartime. That is, of course, as long as the courts interpret FISA as being in line with the Constitution. If they don't then the president has a valid argument for getting FISA deemed unconstitutional. See, nothing can trump the Constitution, and that includes laws enacted by Congress if they directly conflict with his power. In Federalist #78, Hamilton pointed out an important thing about the law.
"No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."
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: Who's contacted you, for example? The New York Times?
CS: Well, I wouldn't want to name specific ones. It's a little bit of confidentiality there, but some well known ones. Let's just say that.
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. As I recall, by the way, I was quoted in the Los Angeles Times, and they did say that in at least one person's view, the authorization to use military force probably was adequate here.
The MSM's coverage of this issue has been pitiful because they are speaking as though they are experts, and as Hugh pointed out with Jonathan Alter, he didn't even have the legal knowledge--lay, professional, or otherwise--to even be commenting on the subject. He was unfamiliar with what FISA actually stated, he had not read the cases involved in this argument, and poo-pooed the leak of this story. Granted, he admitted that if a crime had been committed the leaker should be prosecuted. We've already established a crime occurred. But to the MSM, their cavalier attitude in presenting "facts" to America is a journalistic felony; facts are facts only if they're true, and they're misconstruing the entire argument. As usual, we're left to clean up the mess after the MSM makes it.
HH: Do you think the media simply does not understand? Or are they being purposefully ill-informed in your view?
CS: You know what I think it is? It's kind of an echo of Watergate. So when the word wiretapping comes out, a lot of people get really nervous and think this is a rerun of Watergate. I also think there are two different ideas going on here. One is skepticism on the part of many members of the media about judgments by President Bush that threaten, in their view, civil liberties. So it's like they see President Bush and civil liberties, and they get a little more reflexively skeptical than maybe the individual issue warrants. So there's that. Plus, there's, I think, a kind of bipartisan...in the American culture, including the media, streak that is very nervous about intruding on telephone calls and e-mails. And that, in many ways, is healthy. But it can create a misunderstanding of a particular situation.
Working hand-in-hand with that misunderstanding, the MSM can twist the public's perception of this issue. A lot of uninformed people have been arguing with Hugh all week long about the NSA program, and how it violated civil liberties, where it didn't. People like to focus on this or that in this case, and refuse to look at the whole picture. Step back, investigate all the angles, including the one the press and the Left are benefitting from. The Times ran the story on the same day the Patriot Act vote was coming up, and caused the filibuster the Democrats enacted. The release was timed, which is probably why the authors faced such opposition from the editors on when it would be printed.
HH: The libertarian panic that you referred to, I actually believe that that probably did prompt a lot of the original egregiously wrong analysis. But now I'm beginning to be concerned that the media is intentionally ignoring the very strong arguments defending what the president did. Do you believe that's taking place?
CS: I don't like accusing anyone of intentionally ignoring anything. So I believe with respect to people, whatever their political views, you should have charity, and assume until it's proved wrong that they're acting in good faith. It's still early in this, by the way. And I think the tide is turning a little bit in terms of the legal analysis. If it turns out that this goes on for months, and facts don't come out that are worse than the facts we now have, then it looks...then it will look like a continuing panic, which would be worse than what we've seen just in a couple of days.
Again, this will fall to us to control and clean up. The malfeasance involved in this story from the MSM is all over it. Add the fact that they're not being truthful with the public, and you have the panic scenario that Prof. Sunstein hints at. When that panic takes hold, people will be arguing for the president to end such actions. This leads to us being more open to our enemies, which prevents the president from carrying out his Constitutionally-enumerated duties.
HH: Have you had a chance yet, Professor Sunstein, to review the William Moschella memo on the program that was sent today to Senators Rockefeller and Roberts, and Congresspeople Hoekstra and Harman?
CS: Yeah, I've read that.
HH: Did you find it persuasive?
CS: I thought it was good. It was a solid job. I thought there were a couple of things that, you know, these are the president's lawyers, and they're not going to be neutral. I think it was definitely more on than off. The analysis of the Fourth Amendment issue was brisk and conclusory. All that was said was that the Fourth Amendment requires reasonableness, and this is reasonable. Chief Justice Roberts would demand something a little bit better than that, as would any good judge. The analysis of the case you mentioned, that is the United States against United States District Court was...I guess the lawyers were just tendentious. But I don't think it was...I think it was a good, solid analysis. Better than what we've seen, let's just say, from Congress so far.
HH: All right. Now let's talk about how this gets to the courts for review, because I frankly don't see any way for this program to get to the courts for review, unless and until any of the information is used against the suspect, if that suspect is capable of actually finding that out. Do you see judicial review of this occurring in any way?
CS: You're completely right. You have to find someone who has standing to object to this. And so what you'd have to find is an American citizen whose been tapped, or intruded on in a way that results in harm. Now if someone's phone has been tapped, and there's been nothing done with it, there's an argument that there's standing there. But it's very possible this won't be litigated at all.
With everything being reviewed every 45 days with this program, one would think by now someone would have complained about being nailed by the surveillance. Even the Patriot Act had people claiming they were being illegally surveiled. None panned out, but there were accusations. I concur with Prof. Sunstein. We will be lucky to see this litigated.
HH: Let's turn, then, to the person who leaked it to the New York Times. I discussed this with Senator Jon Kyl last hour, Senator Cornyn yesterday. It is clear to me that a federal crime has occurred. Do you agree with that?
CS: I'm not sure. What's the statute that this would violate?
HH: The release of classified documents, and it's in 18USC something. I don't know. It's just that if something's classified, you cannot give it to someone.
That would be USC 18, Section 798 regarding espionage, and the release of classified information, cited below:
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
Shall be fined under this title or imprisoned not more than ten years, or both.
CS: And the existence of the program was itself classified?
HH: Yes.
CS: Well, then if so, absolutely.
HH: When you were at Justice, did you get the sense of compartmented information clearances, and all the briefings that went with that?
CS: Sure did.
HH: And were they as adamant in your years as they were in mine about the penalties that would attach to the release of such information?
CS: It was implicit. I mean, no one, when I was there, so far as I know, would even spend a second thinking of leaking classified material. That was the most obvious thing in the world. If you think about doing it, you've thought too much.
HH: And if...are you...
CS: It was a moral requirement, not a...when we were there, we wouldn't leak. It was a moral requirement. It wasn't we were afraid of crime, it was we wouldn't do something that was wrong.
Yet, these twits with the loose lips seem to have no moral guidance whatsoever to tell them that what they're doing is wrong. The media likes to portray this person as a patriot. A patriot is someone who does something on behalf of the nation that is beneficial to it. This was anything but beneficial. It was severely detrimental. Whoever did leak this information, and there should be an investigation into it, should be charged and prosecuted to the fullest extent of the law.
HH: I agree with you on that. And my question is do you think damage to the United States' national interest may have occurred as a result of the leak of this material?
CS: I think it might have. I really hope not, but I think it might have. I mean this is a program which...whose efficacy might well depend on its being secret. That would be...if so, then that would be very, very harmful.
HH: Professor Cass Sunstein, I want to thank you for spending a half hour with us. Very, very interesting conversation. I appreciate as well the law blog, and we'll continue to look forward to reading it. Maybe we can have you back as this unfolds.
CS: My pleasure. I enjoyed it.
HH: Thank you.
After listening to this interview this afternoon, and reading through it (now that Duane put up the transcript), I can say that I have a great deal od respect for this man. He is a brilliant lawyer, and no I'm not saying that because I agree with him, but because I can see how he thinks. I can understand where he is coming from. He is right on the money, and listening to him today, I felt like I was listening to a legal lecture on this topic with Prof. Sunstein and Hugh at once. It was a pleasure, and it will be even more pleasurable to watch the Left react tomorrow over his revelations about the legalities regarding the president's powers.
Publius II
posted by Syd And Vaughn | 1:07 AM
1 Comments:
EMost interesting. In my opinion, the msm pundits fail to distinguish between citizens and non citizens for requiring a warrant and when a warrant isn't necessary. Freedom of the press does not protect the NYT's or it's reporter from criminal conduct. They should be indicted. Rawriter
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