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A number of readers of this blog just graduated from law school  this spring, and are sitting for the bar exam this week.  Different states host the bar exam on different days; as best I can tell from googling around, some folks are mostly or entirely done as of today, and others start tomorrow.  If you’re taking the bar and are just about (or entirely) done, congrats!  And if you’re starting tomorrow, good luck!

Senator Specter has an op-ed in the Washington Post in which he responds to critics of his proposed legislation concerning the NSA domestic surveillance program. Here is an excerpt:

The president has insisted that he was acting lawfully within his constitutional responsibilities. On its face, the program seems contrary to the plain text of the 1978 Foreign Intelligence Surveillance Act (FISA), which regulates domestic national security wiretapping. The president argues, however, that his inherent constitutional powers supersede the statute. Without knowing the exact contours of the program, it’s impossible to say whether he is right or wrong. But three federal appeals court decisions suggest the president may be right.

The integrity of our nation’s adherence to the rule of law requires an answer to the question of whether this program is legal. The protection of our nation’s security and individual rights requires a modification of the program if it is not lawful as currently fashioned. The challenge, which I have been trying to meet legislatively, is to structure a procedure under which the courts can adjudicate the lawfulness of this highly sensitive program while maintaining the secrecy the president contends is so important.

My bill, the result of months of negotiation with the administration, accomplishes this goal by authorizing consideration of the program by the Foreign Intelligence Surveillance Court (FISC), the court created under FISA to consider warrant applications. The FISC has the expertise to handle this question. Its closed proceedings and unblemished record for not leaking would make full consideration both possible and secure. Not only would the bill permit a determination of the program’s legality but if it were found unlawful in whole or in part, a framework would exist for modifying the program.

Critics complain that the bill acknowledges the president’s inherent Article II power and does not insist on FISA’s being the exclusive procedure for the authorization of wiretapping. They are wrong. The president’s constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president’s assertion of inherent executive authority meets the Fourth Amendment’s “reasonableness” test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president’s claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.

I have a tremendous amount of respect for Senator Specter.  I think his efforts to hammer out a compromise over the NSA program are very admirable.  I don’t have a clear view of whether his legislation is a good idea or a bad idea, but I’m certainly open to it.  (My own take is that it’s hard to take a position on Specter’s  bill without knowing the details of the classified program, which of course we don’t know, but that’s a topic for another post.)  At the same time, I believe Senator Specter is making two errors here that are important to understand.

First, Senator Specter appears to discuss the lawfulness of a program as if that were the same as the program’s constitutionality. The two are different, however, as the legal dispute over the NSA wiretapping program has focused mostly on whether it violates statutory Foreign Intelligence Surveillance Act (FISA). Specter’s bill would change the Foreign Intelligence Surveillance Act to remove the basis for believing the program violates FISA, and would then ask the FISA court to determine only if the program violates the Constitution. As a result, Specter’s legislation would not answer whether the NSA program is lawful; rather, it would answer whether the NSA program could be made lawful. That would settle one part of the debate, but would preclude resolution of the other part.

Second, I think Senator Specter is mixing two questions when he writes that “[t]he president’s constitutional power either exists or does not exist, no matter what any statute may say.” There are actually two distinct questions here: The president’s constitutional power to act without Congress’s explicit approval, and the president’s constitutional power to act in the face of Congress’s explicit disapproval. The two are not the same.

To see the importance of the difference, consider an example from wiretapping law. In 1968, Congress passed federal Act, which for the first time permitted federal agents to use bugging equipment to monitor private homes pursuant to a court order. But Congress’s legislation left out something important: The legislation said nothing about the authority of the police to covertly enter the home to install the bug. As a result, Courts had to decide whether Congress had implicitly authorized investigators to break into homes covertly to install the bug pursuant to a court order, or absent that, whether the Executive Branch has “inherent authority” to break into the home to install the bug.

Here is how the Sixth Circuit presented the latter question:

Given the 1968 statute which permits eavesdropping, is it “reasonable” under the Fourth Amendment for officers to break and enter someone’s house or office in order to execute an eavesdrop order? Do law enforcement agents have an independent or inherent authority sanctioned by the Fourth Amendment to break and enter to execute a search warrant, a power that may be extended by analogy to the execution of an eavesdropping warrant?

United States v. Finazzo, 583 F.2d 837 (6th Cir. 1978) (Merritt, J.). The Sixth Circuit concluded that the Executive Branch did not have this inherent authority:

In the absence of explicit statutory authorization, we are unwilling to create a wholly new exception to general search and seizure principles which have held for centuries that such conduct is illegal.

Id. The Supreme Court decided the case a year later, and ruled that Congress had implicitly authorized the covert entries as a matter of statutory law. See Dalia v. United States, 441 U.S. 238 (1979). But the key here is that when the Sixth Circuit was making repeated references to the “inherent authority” of the Executive Branch, that clearly meant “authority to act absent Congressional approval,” not “authority to act in the face of a Congressional prohibition.” The answer to the question of whether the searches were authorized hinged on whether Congress had acted; “inherent authority” was ultimately second to the question of Congressional action. Thus, in Dalia, the fact that the Supreme Court concluded that Congress had authorized the covert entry resolved the matter of Executive Authority.
Coming back to Senator Specter’s claim that “[t]he president’s constitutional power either exists or does not exist, no matter what any statute may say,” my sense is that he seems to be slipping past the key question. Of course, Congress cannot trump the President’s “inherent authority” when that inherent authority is used to refer to the authority to act in the face of Congressional prohibition. And indeed, there are some cases in which courts have referred to inherent authority in this way. However, Congress can trump the President’s “inherent authority” when that inherent authority is only the inherent authority to act absent Congressional regulation. My sense is that most legal analysts interpret the court of appeals cases Specter cites to refer to the latter kind of inherent authority rather than the former kind.

Now, of course, none of this touches on the merits of Senator Specter’s bill. But to the extent that his bill reflects the same assumptions in the Senator’s op-ed, I think it’s helpful to understand why Senator Specter’s understanding is different from that of most legal analysts in this area. That’s my sense of it, at least; if I’m mistaken, I look forward to your comments to help set the record straight.

Matt Bodie has answered a question I have wondered about — are articles at top journals really getting shorter?  His answer, based on a survey of seven top law reviews: Yes.  Here’s the key finding:

• For those articles published in the 2005-2006 editorial season, the average length was 67.13 pages.  The median article was 67 pages long.  In contrast, those articles published during the 2004-2005 and 2003-2004 seasons averaged 87.76 pages.  The median article was 84 pages long. 
• Of the 71 articles published in 2005-2006, only four were over 100 pages (5.6%).  None exceeded 108 pages.  Of the 130 articles published from 2003-2005, thirty-four were over 100 pages (26%).  The longest was 218 pages, and twenty-four of the articles exceeded 110 pages.
• Three of the seven reviews — Columbia, Harvard, and Virginia — did not publish an article over 80 pages long thus far in the 2005-2006 season.

More of the data here.  It’s also interesting to note that the published articles are still around 15% to 20% longer than what the journals say they prefer.  Of course, some of that added length may have resulted from the editing process. 

It’s also interesting to ponder how these numbers may be different from the numbers for journals outside of the “top 10.”  My sense is that before the new policy, the top journals were publishing articles that were considerably longer than the articles published in most law reviews.  I wonder if the new policy has really just brought the “top” journals back into line with everybody else.  Consider the average length of articles published after the new policy was put in effect, 67 pages and change.  If you had asked me three years ago what the average length of a law review article is, I would have said that the average length is about 60 to 70 pages.  It turns out that this was wrong for the seven top journals Matt surveyed; in those journals, the average length was a whopping 88 pages.  So it’s at least possible that the new policy has simply brought the top journals back into line with preexisting expectations.

Today’s New York Times has a story, For Top Law Students, A Sidebar With the Arts.  An excerpt:

It was the kickoff cocktail party for the Summer Art Circle, one of a handful of new initiatives meant to match law firms and arts institutions, which have long been seeking new blood (preferably with excess disposable income) to replenish their audiences and donor rolls. The law firms are paying $375 a head to participate.

The firms are doing it for the same reasons that have led them for years to lavish their summer associates with cocktails, beach parties and fancy boat rides: networking and recruiting. Now art has become the latest addition to this summer bonanza for the nation’s top law students, one more piece of evidence — if any was needed — that a life in the law is a good life after all.

I think the key point is that a summer in the law is a good life after all.  Enjoy it while it lasts, folks.

NPR has posted the audio of a segment of Edward R. Murrow’s radio program “This I Believe,” from 1951, featuring an address by Justice William O. Douglas called The Faith of Our Fathers. If you’ve read Bruce Allen Murphy’s biography of Douglas, “Wild Bill” — priceless Posner review here — you’re probably going to wonder how much of it is fictional and made up for a possible future Presidential run. Still, it’s pretty interesting to hear Douglas’s voice.

Thanks to John Barrett for the link.

Over at the U of C Faculty Blog, Randy Picker has an excellent post on fair use and the DMCA. It begins:

Try this hypothetical. Writing a novel seems to be the thing for law professors to do these days, so I pen a law-and-economics thriller (how could it not be?). You want to read it but I have not released any copies but you know that I have one printed sitting in my bedroom at home. You break into my house, steal the novel, immediately read it, and blog a book review, which includes juicy quotes (“He had the supply, she had the demand, and in the heat of the moment they vertically integrated.”)

Where does this put us when the cops catch you? Do you go to jail? Can I sue you for copyright infringement?

Read the rest of the post here.

UPDATE: While I’m on the topic, I shoud point out the fruits of my own dabbling in the waters of the DMCA from back in 2002: A Lukewarm Defense of the Digital Millennium Copyright Act.  It’s a very short essay, just 7 pages.

If you’ve read over the Constitution a few times — maybe it’s kind of old-fashioned to actually read the Constitution, but I trust many readers have done this — you’ve probably noticed the remarkable number of times the document mentions the crime of treason.

Treason first shows up in the Speech and Debate Clause, Article I, Section 6:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by law, and paid out of the Treasury of thc United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Here it is again in the Impeachment clause, Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

But the real attention comes in Article III, which actually provides a constitutional definition of the crime of treason, as well as special rules of criminal proceudre to be used in treason trials. Here is Article III, Section 3, generally known as the Treason clause:

Section. 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

But wait, there’s more! Treason is also mentioned in Article IV:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

So by now you’re probably wondering, dude, what’s the deal with the Framers’ obsession with treason? When the Framers met in Philadelphia to draft the Constitution, did they just have treason on the mind?

The explanation, as best I can tell, is that the crime of treason had been a very big deal in England for several centuries up the time of the framing of the Constitution.  The Framers of the Constitution were certainly familiar with this history, and they didn’t have any reason to believe the future would be different from the past.

English Kings had long been big fans of bringing treason cases against their enemies, and the origins of English criminal procedure law were largely traceable to outcry (particularly among the wealithy — go figure) of the unfairness of treason prosecutions.  For example, the Constitutional definition of treason was copied almost verbatim from a treason statute enacted in 1351 during the time of Edward III. Also, a number of procedural protections that made it into the Bill of Rights, such as the right to counsel and the right to a public indictment, had been first introduced in England only for treason trials as part of the Treason Trials Act of 1696.

You can also see the special status of treason in the early English criminal law treatises. If you pick up a modern treatise on criminal law these days, the first crime — the most serious offense — is murder. Not so in the 17th and 18th century. Blackstone’s chapter on high treason came much before murder. And in Sir Edward Coke’s Institutes, treason is not only discussed first, but it receives mention in the title of the book on criminal law: The Third Part of the Institutes of the Laws of England; Concerning High Treason, and Other Pleas of the Crown and Criminal Causes.

So at the time of the framing, the crime of treason was a very big deal.  And indeed, it would continue to be a big deal in the late 18th century and early nineteenth century, including in the most famous case of criminal law in the early Republic: the treason trial of Aaron Burr presided over by Chief Justice John Marshall.

You don’t hear a lot about treason these days, except perhaps from Ann Coulter.  But it was a very big deal at the time of the framing, and my understanding is that this history explains why it was mentioned so often in the Constitution.

Judge Vaughn Walker of the Northern District of California handed down an important ruling today rejecting motions to dismiss EFF’s lawsuit against AT&T for its participation in the NSA domestic surveillance and call records program.

It’s a very long opinion, but here’s the gist of it: Judge Walker rejected DOJ’s argument that the suit had to be dismissed outright under the state secrets privilege. Walker ruled that enough of the various programs had been acknowledged by the government and AT&T that the existence of the programs wasn’t a state secret. I assume an appeal will be coming soon, but in the meantime the case will be set to go on to the discovery stage. Notably, the state secrets privilege will continue to play a key role at that stage: the gist of Walker’s opinion is that he’ll scrutinize each discovery request for privilege rather than dismiss the case outright at the beginning.

The opinion also has an interesting section on the Fourth Amendment claims in the complaint. It’s really just dicta, as Walker had already rejected the theory which would have made the issue relevant.  But AT&T had argued that it was immune from suit under the qualified immunity doctrine because the Fourth Amendment issues in the case were not “clearly established.” After ruling that AT&T was not entitled to qualified immunity in any event, Judge Walker added a “note” rejecting the claim on the merits of the Fourth Amendment issue. Here’s the discussion:

The court also notes that based on the facts as alleged in plaintiffs’ complaint, AT&T is not entitled to qualified immunity with respect to plaintiffs’ constitutional claim, at least not at this stage of the proceedings. Plaintiffs’ constitutional claim alleges that AT&T provides the government with direct and indiscriminate access to the domestic communications of AT&T customers. See, e g, FAC, ¶ 42 (“On information and belief, AT&T Corp has provided and continues to provide the government with direct access to all or a substantial number of the communications transmitted through its key domestic telecommunications facilities, including direct access to streams of domestic, international and foreign telephone and Internet communications.”); id, ¶ 78 (incorporating paragraph 42 by reference into plaintiffs’constitutional claim).

In United States v United States District Court, 407 US 297 (1972) (Keith), the Supreme Court held that the Fourth Amendment does not permit warrantless wiretaps to track domestic threats to national security, id at 321, reaffirmed the “necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest,” id at 308, and did not pass judgment “on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country,” id. Because the alleged dragnet here encompasses the communications of “all or substantially all of the communications transmitted through [AT&T’s] key domestic telecommunications facilities,” it cannot reasonably be said that the program as alleged is limited to tracking foreign powers. Accordingly, AT&T’s alleged actions here violate the constitutional rights clearly established in Keith. Moreover, because “the very action in question has previously been held unlawful,” AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.

(paragraph break and emphasis added)

This Fourth Amendment discussion seems somewhat mystifying to me. The wiretapping in Keith is distinguishable from the alleged facts in the NSA program on a number of possible fronts, so it seems quite odd to simply announce without analysis that “the very action” has been held to be unconstitional. To pick just one front, there is a foundational difference in electronic surveillance between targeting particular evidence and incidentally collecting evidence to enable the targeting of other evidence. Judge Walker’s passage seems to simply ignore that difference, which is hard to explain.

Nonetheless, this is (as far as I know) the first judicial opinion to express a view of the merits of the NSA program. Even if it’s dicta, the reasoning is unimpressive, and it is based only on facts alleged in the EFF’s complaint, Judge Walker’s statement that it “cannot seriously [be] contended” that “the alleged domestic dragnet was legal” based on the complaint seems likely to impact the debate.

Finally, it’s worth keeping in mind that this opinion may be very temporary. First, I gather an appeal is coming soon (interlocutory appeals are usually permitted in this sort of context, at least as I understand it). Second, if passed into law, Senator Specter’s NSA bill will pull jurisdiction over these issues away from Judge Walker, as well as the Ninth Circuit on appeal, and will ship the case to the FISA Court of Review instead. Judge Walker’s opinion today is a good hint of why that may make a considerable difference in the outcome of the litigation.

Thanks to Deven Desai for the link.

In a post over at Concurring Opinions, Nate Oman writes:

I recently had a conversation with an acquaintance about the predicament of con law scholars. He made the point that the decline in the Supreme Court’s docket has had a big impact on con law scholarship. It used to be the case, he said, that the Court was churning out enough new decisions that con law professors could keep busy working out doctrinal puzzles and fitting the new cases into their vision of the fabric of constitutional law. With fewer cases to work on, however, con law professor have to find something else to do.

I’ll disagree with Nate’s acquaintance about one thing: I don’t think that the cause of this dynamic is the size of the Supreme Court’s docket. The Supreme Court can make a lot of changes to the law in just a handful of decisions.  They don’t need lots of cases to do that.

At the same time, Nate’s acquaintance is on to something important that is often overlooked these days in debates on the role of the Supreme Court. Relative to most periods, the last few years have been a pretty boring period for the Supreme Court. Now before everyone jumps at this, please note the important caveat: relative to most periods. I’m making a relative statement, not an absolute one, and I suppose I’m implicitly limiting it to the period of the modern Supreme Court of the post-WWII era. True, there is lots of fear or hope that the law will change dramatically in the future, and the Supreme Court’s cases fiddle with the law here and there, but relative to other periods this is a time of considerable stability in existing public law doctrine.

I was thinking of this recently when I read the first edition of the criminal procedure text I recently joined. The first edition of Kamisar & Hall’s Modern Criminal Procedure — as of this summer, it’s Kamisar, LaFave, Israel, King & (gulp) Kerr, but back then it was just Kamisar & Hall — came out in 1965. I recently purchased a copy of it, both because I was interested in the evolution of this book in particular and because recently I’ve been reading a lot about the history of criminal proceudre.

The 1965 edition of the Kamisar casebook is truly remarkable. It’s hard to overstate how uncertain the law was at the time. The Supreme Court was in the midst of ditching many of the centuries-old doctrines of criminal procedure and replacing it with new doctrines. As a result, reading the casebook is something like reading a movie review written by someone who just watched half a movie, was forced to leave, and immediately had to write a review sumarizing the first half and offering lots of speculation about what might happen in the second half of the movie. (Incidentally, I gather this state of flux explains the somewhat odd title of the book: it’s “modern” criminal procedure because it’s about the new set of decisions that were being handed down.)

I plan to blog more in-depth about this at some point soon, because it’s a really interesting story, but think of the difficulties of trying to write a criminal procedure casebook in the summer of 1965. Most of the major topics in criminal procedure had been upended by 5-4 decisions within the last five years. In the Fourth Amendment chapter, Mapp v. Ohio was one of your older precedents: that 5-4 decision had been around for a full four years. For your Fifth Amendment chapter, the Court had just applied the Fifth Amendment to the states one year ago by another 5-4 vote in Malloy v. Hogan. Your material on confessions would feature the 5-4 decision in Escobedo v. Illinois, which was a year old. Finally, your Sixth Amendment chapter had to be based heavily on Gideon v. Wainright, which had been around for two years (although it was a relative rock in the doctrine, being unanimous as to the result). 

Plus, the Court’s decisions were strongly hinting at even more dramatic changes ahead. You could look at the tea leaves and recognize that some big changes were coming to the law of confessions, searches, and stops and frisks. Indeed, the Court was about to decide three of the basic building blocks of today’s criminal procedure doctrine: Miranda v. Arizona (still a year away), Katz v. United States (two years away), and Terry v. Ohio (three years away).

Criminal procedure is just one area, but I think it provides an interesting lens to see the rest of the Court’s docket. These days, even most of the “big” Supreme Court cases are on relatively narrow topics. So I wouldn’t be surprised, going back to Nate’s post, if con law scholars are kind of bored these days. Relative to other eras, not that much is happening.

That’s my impression, at least. Am I mistaken? I look forward to your comments.

UPDATE: I should also point out that the Court’s small docket is in fact related to the relative stability of existing law.  It’s not the cause of the stability, but it is another result of it.  The current Court is very heavily focused on resolving circuit splits, and that leads to fewer grants and decisions that are more likely to be interstitial than we might see otherwise.

Over at The Legal Times, Tony Mauro has this interesting story on the growth of Supreme Court Litigation Clinics at a number of law schools.  It will be interesting to see how many of these clinics can exist at the same time given the relatively small size of the Court’s docket.

Over at the VC, Jonathan Adler reports:

The Association of Trial Lawyers of America (ATLA) may change its name to the “American Association for Justice.” Why? Well, according to ATLA president Ken Suggs, “”Our research shows that if our message is about helping lawyers, we lose. On the other hand, if we’re about getting justice and holding wrongdoers accountable, we win.”

So in addition to the Alliance for Justice, and the Institute for Justice — which of course disagrees almost 100% with the Alliance for Justice — now we might have the American Association for Justice.  

Is it too late to change the name of this blog to “Law Blog for Justice”?

The Volokh Conspiracy is down right now, due to a problem that we’re working on but haven’t quite fixed.  In the meantime, you can visit the VC at this alternative site.

Lisa Fairfax has a very interesting post at the Conglomerate on whether untenured lawprofs aiming for tenure should do empirical research. Specifically, she articulates four arguments raised at a conference against such work. In very condensed form, the arguments are these: 1) it takes too long, 2) it takes a lot of work, 3) empirical articles are harder to place in general law reviews, and 4) it’s hard to get evaluations of such work for tenure purposes.

There is an excellent comment thread, and I particularly agree with this comment by Frank Cross. Larry Solum also has comments over at Legal Theory Blog.

I think it’s important to note that empirical scholarship has one significant advantage for both placement and tenure purposes. A lot of traditional law review articles just rehash arguments that have been made many times before, or are essentially appellate briefs making the author’s best argument for why some policy the author dislikes should be ruled unconstitutional. The open format permits this; articles can just “explore” an issue, or can make an argument that is pretty uncontroversial or else not well supported. My sense is that empirical scholarship tends to have more discipline: the format pushes authors to frame a question that has not been answered, to try to answer it, and to discuss the consequences (and weaknesses) of the answer. My sense is that articles editors like that, and I would guess that tenure committees do as well.

Full disclosure: My first published article was an empirical study, and I have an engineering background that probably makes me less scared of numbers than most lawprofs. So actual mileage may vary.

From the Associated Press:

Attorney General Alberto Gonzales said Tuesday that President Bush personally blocked Justice Department lawyers from pursuing an internal probe of the warrantless eavesdropping program that monitors Americans’ international calls and e-mails when terrorism is suspected.

The department’s Office of Professional Responsibility announced earlier this year it could not pursue an investigation into the role of Justice lawyers in crafting the program, under which the National Security Agency intercepts some telephone calls and e-mail without court approval.

At the time, the office said it could not obtain security clearance to examine the classified program.

Under sharp questioning from Senate Judiciary Committee chairman Arlen Specter, Gonzales said that Bush would not grant the access needed to allow the probe to move forward.

Thanks to reader Allen Asch for the link.

It’s the new hip way for law professors to reach a broader audience.  No, not blogs: novels.  First, Yale Law prof Stephen Carter wrote The Emperor of Ocean Park.  Then, Penn Law prof Kermit Roosevelt wrote In the Shadow of the Law.  Next, Yale law prof Jed Rubenfeld wrote The Interpretation of Murder.  Now, via the WSJ Law Blog, I learn that Stanford law prof and IP guru Paul Goldstein has written a new novel, Error and Omissions, the first of a “mid-six-figure” two-book deal.  I wonder who the first lawprof will be who decides to give up blogging because of the need to find more time to work on their novel.

A month ago, I began a post by saying: “Dahlia Lithwick is a very funny writer, but she often leaves behind her normally sharp analytical skils when she writes about conservatives.” Her latest article on alleged “thought crimes” is a good example of the difficulty.

Lithwick’s column is about the arrest and indictment of the members of two alleged terrorist cells, who apparently were in the early planning period of terrorist attacks but hadn’t gotten very far. Lithwick doesn’t appear to have a problem with what the government actually did; as best I can tell, she seems to find the government’s actions pretty sensible. I agree with her on that front: If you read the indictment filed in the recent Miami case, for example, the legal requirements for conspiracy seem amply met. So at least based on the indictment, the case seems to be pretty sensible and consistent with traditional principles of criminal prosecutions.

Despite this, Lithwick’s column is very critical of the Administration.  The problem, according to Lithwick, is that the arrests signal a new campaign to punish thought crimes:

In one of the strangest legal statements of all time, Attorney General Alberto Gonzalez on Friday said, “I think it’s dangerous for us to try to make an evaluation, case by case, as we look at potential terrorist plots and making a decision, well, this is a really dangerous group, this is not a really dangerous group.” Really? Because I thought that’s what government lawyers were supposed to do. The most dangerous aspect of these new terror arrests isn’t that the government nabbed super-nice guys. These plotters hate this country and want to harm it. The danger is that there is no nuance, no caution, and no shade of gray in this new theory of criminal deterrence by CAT scan, the proposition that you can arrest a man solely for what’s on his mind.

Gonzales and his colleagues seem to be falling into a familiar trap here: They think that since 9/11 happened due to government inaction, any and all government action should be welcome—including widespread arrests of genuine plotters along with hapless paint-ballers. The law works best when it’s used as a scalpel, not an ax. So please, let’s not start arresting citizens for the badness of their thoughts. Because whoops, I just had another one.

Am I missing something? Lithwick’s premise is that DOJ has embraced a “new theory of criminal deterrence by CAT scan, the proposition that you can arrest a man solely for what’s on his mind.” But as best I can tell, DOJ has done no such thing in this case: it filed a criminal indictment in federal court that at least facially amply supports the traditional requirements of conspiracy law — an agreement plus an overt act. There’s no “deterrence by CAT scan,” or arresting someone “solely for what’s on his mind.” Rather, it seems to be pretty traditional criminal law.

Of course, maybe the evidence won’t hold up; maybe there is less to the case than meets the eye. And one might object to the counts in the indictment that are based on the “material support” statute, on the ground that these counts are less grounded than traditional criminal charges. So certainly there are possible criticisms to make, some of which might end up having merit. But Lithwick’s point doesn’t appear to be one of them.

Perhaps Lithwick is criticizing the new strategy, rather than its application in this particular case? Well, let’s take a look at the context of Gonzales’s statement that purportedly announced this new strategy. (Recall that this is the statement that Lithwick calls “one of the strangest legal statements of all time.”) If you look back to the transcript of the press conference, it turns out that Lithwick misrepresents what Gonzales said.

Here’s the complete Q & A:

QUESTION: From reading the indictment, it appears that about a month ago their plans sort of fell apart, which raises a couple of questions. One, it appears they have a real criminal intent, but did they have the capability; that is, were they just naive and incompetent? In other words, were you ever afraid that they could really pull off this plot?

ATTORNEY GENERAL GONZALES: I think it’s dangerous for us to try to make an evaluation case by case as we look at potential terrorist plots and making a decision, well, this is a really dangerous group, this is not a really dangerous group. We look at the facts in every particular case. And we felt that the combination of the planning and the overt acts taken were sufficient to support this prosecution. And that’s why we took this action.

There is no immediate threat. We’ve already publicly announced there’s no immediate threat to facilities in Miami, no immediate threat to the Sears Tower. Obviously, part of the reason for that is because they didn’t have the materials they requested. They did receive the weapons, at least we don’t know of. But nonetheless, they did take sufficient steps that we believe does support this prosecution. That’s why we took the action that we did.

(emphasis added)

If I am reading the transcript correctly, it seems that Gonzales was saying something pretty different from what Lithwick claims. He wasn’t saying that it is dangerous to assess risk, such that no such assessment should be made. Rather, the very next sentence makes clear that Gonzales was saying that the inquiry is difficult, but that DOJ had made an individualzed assessment and found that this group was dangerous enough to take action. Of course, if Lithwick had quoted Gonzales’s full response, she wouldn’t have had much to criticize.

UPDATE: I have fiddled with this since the initial posting to lower the snark level a bit.

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.

Marty Lederman has posted the language of the proposed Specter bill on the NSA domestic surveillance program here (18 pages of statutory text, .pdf).  He offers comments here.  It’s going to take me a while to work through it, but I’ll try to have something before I have to leave for the airport tomorrow to fly far, far away.

In the comment thread to the post immediately below, lawprof Sam Bagenstos asks a very good question about the proposed Specter legislation giving the President the option of FISA court review of the NSA domestic surveillance program:

[S]ince when can an Article III court just decide whether a program is constitutional simply because the president decides to ask the court what it thinks? Where’s the case or controversy?

I was wondering about that, too. I think it can be done, though. Right now, the FISA court has just one job. Its judges wait for DOJ to apply for court orders, and then they either approve or reject DOJ’s applications by applying the governing legal standards.

I gather the legislation could provide for a variation on this theme. For example, the legislation could say that DOJ can apply for a court order authorizing the Executive Branch to conduct the NSA domestic surveillance program, and that the FISA court must issue the order unless it finds that the program violates the Fourth Amendment. If the court finds that the program is constitutional, then the court will issue an order permitting the program. If not, the court will give DOJ time to appeal or resubmit a modified application describing a different program.

This would be a somewhat unorthodox scheme, but off the top of my head I can’t think of a reason why this would be impermissible. The case and controversy would be deciding the court order. It’s true that the order (if issued) wouldn’t be a traditional Fourth Amendment warrant, but that’s not a problem: legislatures often provide for court orders that are different from warrants, and I can’t think of a reason why a court would be unable to issue this special court order if it found the program constitutional.

The Washington Post is reporting that the White House has agreed to a variation on Senator Specter’s proposal to offer statutory authorization for the NSA domestic surveillance program.

If the details hinted at in the story end up being accurate — a big if, mind you — it sounds like this is a considerable victory for the Administration. Here’s my thinking. First, and most importantly, the legislation apparently will authorize the program as a matter of statutory law. That must be a big relief for the Administration after Hamdan. Second, the legislation does not actually require any judicial review. Rather, it gives the President the option of submitting the program to a one-time judicial review limited to constitutionality conducted by the FISA Court. (Bush apparently has promised to submit the legislation to the FISA Court if the legislation is passed exactly as it was agreed to, but I don’t know how likely it is that the legislation would be passed without any amendment.)

Third, it sounds to me like any judicial review by the FISA Court would give the Administration a few chances to establish the constitutionality of the program. If the FISA Court says it’s illegal, DOJ presumably can go to the Court of Review, and if it loses there, to the Supreme Court. In contrast, if the FISA Court approves the program, no one can appeal to challenge the decision. Fourth, my sense is that the media is in the mood to sell this legislation as a post-Hamdan retreat for the Administration. That will help take the NSA program off the political front-burner without interfering with it.

Finally, the legislation apparently would give the Attorney General the authority to order the consolidation of the civil suits against the government relating to the program and to give the consolidated case to the FISA Court. (I’ll have to think about how that might work procedurally, especially in the event of an appeal.) All in all, this seems like a good deal for the Administration.

Thanks to “Just An Oberserver” for the link.