Posted by Orin Kerr:
Senator Specter's Op-Ed:
http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1153814383
Senator Specter has an op-ed in the [1]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. And I
don't have a view of whether his legislation is a good idea or a bad
idea; I think it's impossible to answer that without knowing the
details of the classified program, which we don't know. At the same
time, I believe Senator Specter is making two basic errors here that
are important to understand.
First, Senator Specter appears to be confusing the lawfulness of a
program with its constitutionality. The legal dispute over the NSA
wiretapping program has focused mostly on whether it violates
statutory law, and in particular the Foreign Intelligence Surveillance
Act. 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 if the program violates the
Constitution. I�m not sure why Specter sees this as having the FISA
Court determine whether the program is "lawful." It's not; under
Specter's proposal, the FISA Court would not be asked to resolve the
current debate over whether the program is lawful. Rather, the FISA
Court would only be asked to determine if the program has
constitutional problems. 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 had "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 and therefore could not act without Congress's
approval:
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. As always, civil and
respectful comments only.
(cross-posted at [2]OrinKerr.com)
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2006/07/23/AR2006072300578.html
2. http://www.orinkerr.com/2006/07/25/senator-specters-op-ed/
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