I have read the Specter bill, and am most intrigued by Section 9 of the bill, which is titled “CLARIFICATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.” Interestingly, the Section is a “clarification” only if you assume the correctness of the President’s more controversial claims to Article II authority. If you accept the more traditional understanding of the separation-of-powers seen recently in the Supreme Court’s decision in Hamdan v. Rumsfeld and Justice Kennedy’s concurrence in that case, then this “clarification” is actually a major reorientation of the role of Congress in foreign intelligence monitoring away from the 1978 framework of FISA. [See the Update at the bottom for further discussion.]
The key language is the new Section 801 of FISA:
Nothing in this Act [FISA] shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.
That strikes me as a pretty major change, given that the purpose of FISA in 1978 was to attempt to regulate that authority. The Specter bill then would rewrite the prohibitions of FISA to explicitly allow for this authority. For example, 50 U.S.C. 1809 presently states that “[a] person is guilty of an offense if he intentionally engages in electronic surveillance under color of law except as authorized by statute.” In other words, it’s illegal to conduct warrantless monitoring. The new version would be rewritten as follows:
A person is guilty of an offense if he intentionally engages in electronic surveillance under color of law except as authorized by statute or under the Constitution.
(emphasis added) Thus, the President would have a right to excercise his inherent constitutional authority to order monitoring absent Congressional regulation, and the prohibitions of FISA would apply only to monitoring that does not fit within that authority.
Similarly, the bill would amend Congress’s current command that the Wiretap Act and FISA must provide the exclusive means of conducting monitoring. The current version of the statute states:
Nothing contained in [the Wiretap Act or other laws regulating criminal investigations] shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
18 U.S.C. 2511(2)(f).
Under the Specter bill, this language would be amended to be:
Nothing contained in [the Wiretap Act or other laws regulating criminal investigations] shall be deemed to affect the acquisition by the United States Government of foreign intelligence information that is permitted under a Federal statute or the Constitution of the United States.
(emphasis added).
On my first read, at least, it seems like this Section 9 is the most important part of the Specter bill. Maybe I’m missing something, but my sense is that it largely tracks the David Addington/John Yoo approach to Article II; that is, it would have Congress back away from the claims to authority that Congress made in 1978 that the Administration has suggested it believes are unconstitutional because they infringe on the Commander-in-Chief power.
Congress can certainly do this, of course: Congress passed FISA, and it can repeal or water it down as well. And of course different people will have diffferent views on whether this is a good idea. But it does seem like this is a major shift in approach, and one that is probably more important in the long run than whether the NSA domestic surveillance progam is submitted to the FISA court for review.
UPDATE: A helpful exchange in the comment thread points out that there are two different ways of reading Section 9. Is the President’s “constitutional authority” supposed to be the authority that the Supreme Court has recognized absent statutory regulation, as in the Keith case? Or is the President’s constitutional authority the authority that the Administration believes it has even if Congress tries to regulate the Executive Branch? Under the first reading, which is the one that I was assuming to be the case, Congress is moving from Youngstown category III to category II. Under the second reading, we’re still in Category III, but Congress is explicitly allowing for the possibility that FISA as enacted in 1978 was partially unconstitutional. I think the former reading makes more sense, as a) Congress doesn’t normally have a section pointing out that its law is not intended to be unconstitutional, and b) the existing exclusivity language that is being deleted was the reason that FISA has been understood to bring us to Youngstown III (subject to the possible AUMF claim). But it’s worth pointing out that another reading is possible.
The defense of this provision is that it’s like a savings clause; if the Supreme Court ever declares that the President’s right to do such-and-such can’t be limited by statute, well then, this prevents the entire statute from being struck down.
But number one, it’s not written like a savings clause, which tends to expressly recognize the contingency of a court striking down part of the law; and number two, after passage of this bill, there’s not going to be a Supreme Court case. The only way the Supreme Court is going to get involved in determining the scope of Congress’ ability to regulate the President is if Congress actively tries to regulate the President. If Congress passes a law that says “oh no, we’re most certainly not trying to limit the President’s constitutional power,” then the Court is going to give the President a wide berth, consistent with the Youngstown test.
There is absolutely nothing wrong with Congress saying “We’re not interested in limiting the President’s substantive power to eavesdrop on enemies, but we are interested in regulating that power to make sure that it’s not being misused.” But unless they stick up for their right to pass such a law, the Supreme Court isn’t going to just hand it to them.
I noted with interest that the first page of the draft legislation leaves a placeholder for a title for the overall act.
I would suggest The Triumphant Yoo’s Radical Authoritarian Necessities Trouncing Senators (“TYRANTS”) Act of 2006.
By my reading, the addition of the “or the Constitution of the United States” provision would merely codify the concluding point of the Conference Report for the original FISA: That Congress acknowledges the possibility — not the certainty, but the possibility — that the Supreme Court would conclude that the President’s authority (even at its “lowest ebb”) over the collection of foreign intel supercedes Congress’s power, and that therefore the President should succeed under Jackson’s opinion in Youngstown. (House Conf. Rpt. No. 95-1720 at 35)
Adam,
Isn’t there a significant difference between a) signs of Congressional concern that there may be some constitutional issues with taking this to Youngstown III, and b) Congress explicitly taking this out of Youngstown III?
I may misundersant you. Is Congress explicitly taking this out “Youngstown III”? The bill allows for the possibility that the Court would conclude that the President has authority. But to say that is merely to beg the question. Congress isn’t saying that the Constitution DOES give the president untempered authority.
If I read you correctly, you place Congress in an oddly circular situation, when mere acknowledgement of Youngstown III would itself put the President and Congress in Youngstown II.
Adam,
The clause would do much more than codify the statement in the conference report. The authors of FISA made clear that they were attempting to utilize the full extent of Congress’s power. FISA left to the president only his residual exclusive powers, whatever those might be. But the president’s exclusive powers are just a small subset of his inherent powers. Under Specter’s bill, as I read it, the president would be free to authorize any surveillance he could have authorized pre-FISA, i.e., anything within his inherent authority. Assuming the president has the inherent authority to authorize warrantless wiretaps (the question left open in Keith), Specter’s bill would essentially make FISA’s entire warrant scheme optional.
Clarification: I should have said, “where mere Acknowledgment of Youngstown III”s ‘lowest ebb’ provision would itself put the President and Congress in Youngstown II.”
I may be wrong, but it seems that the amended portion allowing other eavesdropping “as authorized by statute or under the Constitution,” if not intended as such, can easily also be interpreted as validating the Administration’s argument that the AUMF positively authorized the NSA program.
After all, the exclusivity provision is the linchpin to the Youngstown Category III argument of express congressional prohibition. Also, my read of the “under the Constitution” portion leans toward Professor Kerr’s: that it could provide (and may be intended to provide) the loophole necessary for the Admin to say “FISA’s own amended terms allow Article II Executive power to trump its requirements, already watered down by deletion of the exclusivity provision.”
A breathtaking bill indeed. Specter gave away the whole farm; Bush “compromised” absolutely nothing.
I’m sorry, Mr. White, but as much as I may agree with you politically — and thus probably should not be undercutting your argument — I think Orin is correct that this takes it out of Category III and puts it in Category I. Steve Vladeck over at Prawfsblawg asked: “[O]nce Congress has authorized a program, does a congressional statement of what it views as the President’s constitutional authority matter?”
A reasonable reply is that if the statute gets rid of any possible statutory violation and depends on a view of the President’s power that is wrong, but the statute is constitutional and the statute plus the President’s power puts him in Category I of the Youngstown framework, then on what basis would the Supreme Court strike down the Congress’ view of the President’s power? It seems that if the clause is vague (i.e., Article II is open to interpretation by different administrations) and the Executive and Congress agree and no specific provision of the bill of rights is violated, then the Supreme Court cannot intercede without issuing an advisory opinion. So the question is: does the Supreme Court’s view matter? And the answer, according to Article III, is no.
I would note, however, that the agreement of Congress makes this unlike Hamdan and more like Loving, a Kennedy opinion, which Stevens’ opinion cites to in a section of Hamdan that Kennedy does not join.
Adam,
You really have to look further back in the legislative history than that.
In 1968, when Congress passed the Title III wiretap statute, it carved out foreign-intelligence surveillance with an explicit deferral to executive authority:
“Nothing contained in this chapter or in section 605 of the Communications Act . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of
a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities.”
In enacting FISA, Congress repealed that provision, replacing it with the requirement that FISA’s procedures “shall be the exclusive means” for such surveillance.
Thus, for the first time, Congress chose to legislate in this field, citing the Youngstown framework as an underpinning. For the first time, it became theoretically possible for a Youngstown Category 3 situation to arise; it has actually arisen now that the adminstration has violated FISA (unless one buys the statutory argument that the AUMF actually authorizes the surveillance).
The basic effect of Specter’s bill, fulfilling a longstanding goal of Cheney, would be to revert to the status quo before FISA.
There could no longer be a Category 3 case, because Congress would have abandoned the field.
(p.s. Orin: Can my comment from last night get out of moderation jail?)
[OK Comments: My apologies for the delay in appoving the comment. I was flying to Europe, and did not have Internet access during the flight.]
Nice post, Orin — I guess the question that I share with Adam is, if we end up back in pre-1978 land, doesn’t the statute leave the baseline constitutional question — whether Article II authorizes the President, without Congress, to conduct domestic warrantless surveillance — open? That’s what I’m struggling with…
Adam,
My point is that if Congress says it is not regulating something, that takes it into the category of Youngstown in which Congress isn’t regulating something. Isn’t that Youngstown II? In other words, I don’t read the legislation to say that Congress isn’t regulating where it is unconstiututional to regulate. Rather, I read it as saying that Congress is going back to the pre-FISA approach in which it didn’t try to regulate in this area. Do you read it differently? I’ll have to think about this more.
I guess I see the presumption the other way: That the bill makes clear that it is regulating in this area to the greatest extent possible, until the point where the Court says that Congress can’t. And that the provision does not presume that the Court will ever say that Congress can’t.
To put it another way, while Congress says that the statute does not limit the President’s authority, it does not affirmatively grant that the President has that authority to begin with (absent statutory approval). Section 1809 exempts surveillance conducted under constitutional authority, but does not define what that authority is. And Section 2511 claims not to affect constitutionally-permitted surveillance, but it does not purport to define what the constitution permits.
By my reading, then, when it comes to how the Court she define the President’s authority in each of those provisions, the bill is perfectly agnostic.
(I’ll stop monopolizing your comments section now.)
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I would have highlighted this word:
“A person is guilty of an offense if he *intentionally* engages in electronic surveillance under color of law except as authorized by statute or under the Constitution.”
Given the lack of precedent on this point with respect to the President’s Article II powers, it would be basically impossible to prove that someone intentionally exceeded what they knew to be the constitutional boundary, no matter how silly (Addington/Yoo, this means you) their rationale.
[OK Comments: No, Alkali, that's wrong. As a matter of federal law, "intentionally" means with intent to commit the act, not intent to trigger the legal consequences of the act. Your point would hold if the statute used a mens rea of "willfully," but it does not.]
I think you guys got the issue right: is the bill saying that congress is not asserting its right under Youngstown or is it saying the Art. 2 authority vs. Youngstown is what is to be decided by FISA/Sct? The clarification needs clarification.
(Actually, I think in light of the Hamdan decision, this legislation is very pro-president, not really a compromise)
I think Specter thinks the way Adam thinks. I think the WH may think the way O.K. thinks. That’s a problem.
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It seems to me that when Congress legislates in an area, but states that it does not intend to limit the President’s constitutional power, we’re really in Youngstown category II and 1/2. On the one hand, Congress hasn’t left the area
“an open field” or displayed “inertia, indifference or quiescence” (Category II) — it has made its views known. On the other hand, acting outside Congress’s framework wouldn’t necessarily be “incompatible with the expressed or implied will of Congress” (Category III) because Congress has acknowledged that the President has the power (of an undefined scope) to do so.
The absence of an exclusivity provision does not, in itself, put us in Category II. After all, there was no exclusivity provision in the laws at issue in Youngstown. Of course, there was no clause expressly reserving the President’s constitutional power, either. But the ultimate test of II v. III is whether (and, I would argue, to what degree) the President’s actions are “incompatible with the express or implied will of Congress.”
If the President disregarded the FISA framework wholesale,
would this be incompatible with the express or implied will of Congress? Just An Observer cites the pre-1978 legislative history for the proposition that under the proposed Act Congress would have “abandoned the field.” But what about the text of the proposed Act? The “Findings” section states: “It is . . . essential . . . that in protecting us against our enemies, the President does not compromise the very civil liberties that he seeks to safeguard.” It then goes on to quote Jackson’s concurrence at length, as well as O’Connor’s concurrence in Hamdi that “the state of war is not a blank check for the President.” Doesn’t that “imply” that Congress does not intend for the President’s powers to conduct electronic surrveillance to be unchecked?
To put it another way: Assume that the repeal of the exclusivity provision does put us in Youngstown category II. Isn’t it clear that, in Congress’s view, the President’s category II authority to conduct electronic surveillance is not unlimited? And doesn’t Jackson’s framework require us to give weight to Congress’s will, even if we might have otherwise thought that the President’s category II power was unchecked?
I don’t mean to deny that the proposed Amendment would greatly expand the President’s powers to conduct electronic suveillance (far beyond what I would want to see). But I’m skeptical that, as Balkin and Lederman argue, it would give him a “blank check.” That’s certainly not how I would rule if I were a judge presented with the issue.
Adam White: To put it another way, while Congress says that the statute does not limit the President’s authority, it does not affirmatively grant that the President has that authority to begin with (absent statutory approval).
But this is exactly why the statute is not agnostic! Congress does not affirmatively grant that the President has that authority because that affirmative statement would be (or could be interpreted as) a delegation; since delegations and inherent power are inconsistent (you don’t need it if you already have it), the “agnosticism” is really an implicit recognition of the inherent power — not mere nonregulation of the area. You have some regulation plus recognition of the President’s inherent authority: that puts this in Category I.
[OK Comments: Malthus, isn't category I reserved for cases in which Congress expressly states that the President can do a particular act? Your argument seems to be that you can read the statute as implying that Congress thinks the President might have some power to do something, and thus this is Youngstown I. But I don't think that's how the Youngstown categories work.]
AF: But what about the text of the proposed Act? The “Findings” section states: “It is . . . essential . . . that in protecting us against our enemies, the President does not compromise the very civil liberties that he seeks to safeguard.” It then goes on to quote Jackson’s concurrence at length, as well as O’Connor’s concurrence in Hamdi that “the state of war is not a blank check for the President.” Doesn’t that “imply” that Congress does not intend for the President’s powers to conduct electronic surrveillance to be unchecked?
My understanding is that the actual text of any act’s active clauses trumps any arglebargle in the whereas clauses.
(Similarly, Specter’s actions in pressing this bill belie his words as he postures as a defender of congressional prerogatives.)
Besides, the wherease clauses and the active provisions of the bill are not mutually exclusive here.
O’Connor’s Hamdi concurrence, like the Youngstown precedent it cites, only implies that Congress may limit the President’s actions. The bill does not say otherwise, nor could Congress give up a constitutional authority if it wanted to.
But O’Connor didn’t say Congress has to take any particular action to bind the President. In FISA it did limit the President in this field, but the Specter bill would repeal FISA’s core provision that does so.
I’ll try to unpack this question best I can. In my own post on the bill, http://balkin.blogspot.com/2006/07/specter-monstrosity.html, I wrote the following, which raises the same basic question: “At least with respect to terrorism-based electronic surveillance, all of the limits Congress imposed on electronic surveillance in FISA are in effect repealed [under the Specter bill].”
A couple of readers have asked me which section of the Specter bill supports that statement. Short answer: Various provisions in section 9, and, secondarily, the new substantive standards for “program”-wide approval in section 6.
Longer answer:
What is it, exactly, in FISA, that *restricts* electronic surveillance (ES) in the first place? There are two prohibitory provisions in FISA: 50 USC 1809 and 18 USC 2511(2)(f). The latter was the big innovation in 1978 — and 2511(2)(f) thus is the centerpiece of the current legal debate over the legality of the NSA program. (See the memos collected here: http://balkin.blogspot.com/2006/07/nsa-fisa-and-hamdan-response-to-doj.html.)
In the years before FISA, electronic surveillance (ES) for foreign intelligence purposes had been done largely pursuant to constitutional, not statutory, authority, and as JaO notes, the law prior to FISA actually stated specifically that “Nothing contained in this chapter or in section 605 of the Communications Act . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities.”
This meant, pre-1978, that as far as statutes were concerned, the President had a blank check. Therefore, all the cases challenging ES (e.g., Butenko, Zweibon) were brought under the Fourth Amendment.
FISA changed that. It established a standard for FISA court approval (probable cause to believe the target is an agent of a foreign power, etc.), and then did one other very important thing: It replaced the provision preserving the President’s constitutional authority with a provision going in exactly the opposite direction — the current 2511(2)(f), which states that “the procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.”
As a practical matter, this meant that if the President didn’t engage in ES pursuant to FISA (or title 18), he could not do it at all, including pursuant to some previously sufficient constitutional authority. Congress was establishing an exclusive means by which ES could be done.
Section 9(c)(1)(B) of the Specter bill would *repeal* the “exclusive means” provision of FISA. And, for good measure, section 9(a) of the bill would replace it with an executive-power preservation provision virtually identical to the one that FISA had repealed: “Nothing in this Act [FISA] shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.”
Because the President’s Article II powers in the absence of statutory restriction arguably extend to at least a great deal of the sort of ES under the NSA “program,” this means that FISA would no longer prohibit most or all of what the President was doing pre-1978, or what he’s doing in the NSA program now. (Perhaps some of it, however, would be problematic under the Fourth Amendment, see point 3 of this post — http://balkin.blogspot.com/2006/07/open-letter-in-response-to-cass.html.)
What about the other FISA prohibitory provision, section 1809? Well, the new constitutional-authority-preservation provision would trump it. But just to be sure 1809 doesn’t limit the President, Specter would amend that provision, too. 1809 currently prohibits all ES not authorized by statute. But section 9(c)(2)(A) of the Specter bill would exclude from the criminal provision any ES authorized *under the Constitution* as well as under statute — piggy-backing on the two changes in sections 9(a) and 9(b) noted above.
This means that there would no longer be *any* FISA prohibition of ES if it comes within the President’s Article II authority. That is to say, we’d be in Youngstown Category II, or even Category I.
Steve wonders, however, whether the NSA program would come within the President’s Article II authority. Two responses: If the program truly is reasonably designed to obtain information about foreign attacks on the U.S., then I think it’s almost certain the courts would find that the power can be exercised by the Commander-in-Chief, cf. Keith, 407 U.S. at 30f., Butenko, 494 F.2d at 603, especially in times of armed conflict.
Second, even if there is no Article II authority for the program, we’d then have the new substantive standard for FISA court approval, in section 6. If the AG *did* take advantage of the new FISA court review, and got approval from the FISA court, the ES “program” would then fall outside the 1809 prohibition because it would be “authorized by statute.” And, as I’ve tried to explain on the blog, the substantive standards for the new FISA court review in terrorism cases would be dramatically less restrictive than the current FISA probable cause standard, in several important respects (e.g., program-wide rather than specific, must looser connection to terrorist actors, etc.).
Also, although this is probably redundant with the previous changes, section 9(b) would repeal the provision of FISA (50 USC 1811) that allows the President to skirt FISA for only 15 days after a declaration of war.)
Marty Lederman, I agree that FISA would no longer statutorily restrict the President’s authority to conduct electronic surveillance. But wouldn’t it still be relevant to the scope of the President’s constitutional authority?
It seems to me that when Congress legislates in an area, but states that it does not intend to limit the President’s constitutional power, we’re really in Youngstown category II and 1/2.
I disagree. If we’re going to further subdivide the Youngstown framework, I think this would more accurately be described as a category 1.5 situation. Specter’s bill makes clear that it is not intended to take away any of the default authority the president would have under article II. So we’re at least in a category II situation. But by expressly endorsing the use of this power, the bill moves the situation much closer to category 1.
What I find even stranger is that the bill seems to implicitly endorse the notion that FISA’s exclusivity clause was never a valid restriction on the president’s power. The section of the bill that amends the clause is styled a “CLARIFICATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.” To me that language suggests a belief that FISA, as originally written, unconstitutionally infringed upon executive power. Indeed, such a belief seems to be implied by the entire structure of the bill. I’m not sure what effect this implication would have on the courts as as a practical matter. Probably none. But it seems noteworthy nevertheless. It seems to me that by passing this bill as currently written, Congress would be implicitly misstating the limits of its own constitutional authority.
Anonymous Liberal,
It is perfectly valid to consider gradations between Jackson’s three discrete categories. Dames & Moore amplified that refinement when it adopted Jackson’s framework:
“Justice Jackson himself recognized that his three categories represented ‘a somewhat over-simplified grouping,’ and it is doubtless the case that executive action in any particular instance falls not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition.” (Cites omitted).
Having said that, I agree with your substance that Specter’s proposal would place the FISA situation, if not at Category 2, then nearer to 1.5 on that spectrum. In no way would it approach Category 3, where we are under current law.
Orin: Malthus, isn’t category I reserved for cases in which Congress expressly states that the President can do a particular act?
You know I agree with everyone saying it’s a Category 1.5! I even used the word penumbras!
When AG Gonzales appeared yesterday before the Senate Judiciary Committee (archived at c-span.org), he and Chairman Specter enacted a colloquy agreeing that the President has “inherent” authority in this field. Specter advanced the facile non-argument that the President’s authority “is what it is.” He seemed to imply that the language deferring to the President’s constitutional authority really would have no substantive effect.
All of which begs the question. No one seriously disputes, as a separation-of-powers question, that the President has authority to surveil absent statutory restrictions. The core controversy has been over the President’s authority in the face of FISA’s current limitations, which Specter’s bill would repeal. As Jackson postulated in Youngstown, “Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.”
Meanwhile, there was an interesting exchange between Gonzales and Sen. Feinstein (about 2 1/2 hours into the hearing) regarding judicial review.
Feinstein, who also is an Intelligence Committee member and thus has been briefed on the NSA program, challenged Gonzales to concede that its legality could be submitted to the FISA courts for review under existing law.
Gonzales (under oath in this appearance) first said he did not think so, but then Feinstein pressed the question, based upon unspecified facts she said were known to her from the classified briefings. Gonzales then said he would have to study the question, and might later amend his answer, and wanted to talk to her one-on-one.
This issue to me seems quite central to both the politics and law of the NSA controversy. I think that from what we know, DOJ has had an obvious route to initiating a test case in the FISA court under current law all along but shrinks from doing so.
Unlike the limited judicial review contemplated by Specter’s latest bill — which as I read it could only test the “constitutionality” of FISA with regard to the Fourth Amendment — a test case under current law could also reach all the other legal issues debated publicly for the past seven months. The adminstration could raise the AUMF argument, the inherent-authority argument, the tooth-fairy argument or anything else it chose to demonstrate that the facial violation of FISA is somehow lawful.
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