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December 28, 2005


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Professor Sunstein:

Thank you very much for this post. I have "quibbles" nonetheless.

They are published here - http://www.dailykos.com/story/2005/12/28/134521/54

Account Deleted

Maybe this is an amateurish question, but I'm an amateur, so here goes.

As I understand it, the inherent powers argument refers to the President's powers as CiC. Things like the NSA and conduct of foreign intelligence fall under the "direction of the military."

Fine. Let's interpret foreign intelligence as falling under the broad category of military operations, thus to be directed by the Pres as CiC, and let's suppose even that wiretaps of US persons don't violate the 4th ammendment as long as they are for foreign intelligence purposes.

But, doesn't article I, section 8 give Congress the power to "make rules for the government and regulation of the land and naval forces"? Doesn't the premise assumed above mean that the NSA is a "land force," since it falls under the direction of the Pres as CiC? Why isn't FISA then a rule made by Congress under its explicit (not even inherent) powers under article I?

It would seem odd for the writers of the Constitution to grant Congress the power to make rules for the governance and regulation of the military only to say that the Commander in Chief of the military has the "inherent power" not to follow those rules. Am I missing something?


Prof. Sunstein, if you're serious about this, then go the this URL:


Here's the bottom line:

"In short, there is no support in the case law for the assertion that the President has plenary power when acting as Commander in Chief. It is contrary to the Constitution, the Federalist Papers, particularly Federalist 69, and all Supreme Court jurisprudence. It is an outlandish and yes, preposterous assertion by the Bush Administration.

"Professor Sunstein would do well to be straightforward on this. He comes closer today, but still seems unable to say it straight out." - Armando; Daily Kos

Unless the Bush administration is your client, this work of yours is disingenous, excuses their shoddy legal rationale, and devalues the legal profession and legal education.


Professor Sunstein, if I wanted to know that "he's right, she's right, you're right too", I would have just gone to services on Saturday.

Nick Danger

But Prof. Sunstein, WHY is it "valuable to avoid disputes between (1) and (2), and to see if progress can be made by bracketing the most fundamental questions about 'inherent' authority and by giving careful attention to what Congress has done." What is gained by having the Supreme Court decide constitutional questions by sidestepping them? I'll let you answer that question, if you can, but I will tell you what is lost: the integrity of the Supreme Court's role in political decision-making. Instead of the Supreme Court deciding a Constitutional question on Constitutional principles that the average voter understands (or has, at least, heard of) the rationale gets buried under a legal liturgy, suitable for interpretation only by the priesthood of lawyers and judges. Move along, nothing to see, please turn to the sports and How 'Bout Them Bears!!!

We can do better than that. We SHOULD do better than that. In my view, fundamental constitutional questions such as whether the President has to follow FISA ought to be decided on a constitutional basis. If the Supreme Court cannot bear to make a call when the executive usurps legislative power and acts unconstitutionally, who will? The Bush Administration provides a clear answer: the bold and the brazen.

Besides, this question cannot be sidestepped. Bush asserts he does not have to follow FISA. He's not making a statutory argument, he says he can do so "as Commander-In-Chief." The question at hand is whether the Commander-In-Chief power grants the President unlimited authority. That question cannot be decided by looking at the legislative history of FISA.

This is the most fundamental constitutional question to face the nation since Marbury vs. Madison, Professor. The decision should--must--be made on the true Constitutional merits.

Your former student,
Brian Sims, JD Chicago '86

Ali Baba

Prof. Sunstein, isn't it true the Constitution permits anything the country in its infinite wisdom or collective hysteria decides, for good or for bad, historians will judge, and what the black-robed priesthood thinks our sacred rhetorical document says, as if it could speak or they were ventriloquists, is exquisite gibberish indistinguishable, anthropologically speaking, from the ritual jibber-jabber one might hear in a sacrificial ceremony where priests chew coca leaves and, in a bonfire providing spiritual contact with the spirits of Military Defeat, burn little children to death in order to keep the eternal flames of Freedom alive?

Simon Phelps

A previous post discussed "disaggregating the issues" in the wiretap scandal. Now this post claims that Bush's argument for "inherent authority" is not "preposterous."

Breaking things down analytically is a good thing to do. But sometimes you lose the forest for the trees when you do that.

So before we go on, I'd like to take a moment to re-aggregate the issues, to frame them in a way that elucidates what's really at stake here.

The real issue here is this:

Does the Constitution grant to the President unchecked authority to spy on any American placing an international call at any time, with no judicial oversight, contrary to the express will of Congress, and with no probable cause to believe that the caller is in any way connected to foreign powers or to terrorism?

More succinctly: does the 4th Amendment offer any protections at all to Americans innocent of any wrongdoing, who place international calls from the United States?

Let's answer *those* questions, please. I defy you to make arguments supporting the president's positions on either of those which are not "preposterous."

This is a debate of Constitutional, historical proportions. Let's not lose sight of this forest. I do not exaggerate to say that the future of liberty itself depends on a correct outcome to this debate.

Freedom can survive any and all terrorist attacks.

Freedom cannot survive a president so openly contemptuous of the rule of law that he threatens members of Congress with criminal prosecution if they so much as divulge the existence of a totalitarian style mass intrusion on privacy.

We as lawyers and law professors have a special obligation in this time of national crisis. Our obligation is to cut through the crap being purveyed by the administration. *We* must tell the American people in clear terms what is going on.

What's going on is this: Bush has effectuated the functional equivalent of a coup d'etat. He has defied the expressly stated will of Congress, asserting nothing less than an "emergency power" to "suspend the Constitution's" 4th Amendment privacy protections to "fight terrorism" (even though he's not actually spying on terrorists). Our duty is to tell the people that, and to tell them plainly that *the Constitution grants to neither Congress, nor the judiciary, nor even the President the power of tyrants.* Bush broke the law, statutory and Constitutional. Bush *must* be impeached and removed, or America is over.

When privacy dies, liberty itself will follow soon thereafter.

Let's get this right, people. God save the Constitution. God bless America.


Cool. All I have to say is amen to Nick Danger/Brian Sims and Mr. Phelps. You got it right.


Dear Prof. Sunstein,
Two questions:
1) why is not clear that the Fourth Amendment objection to the surveillance is strong?
2) what details about the surveillance would you want to know to evaluate whether the practice falls within the president's inherent authority?


Presidential Powers be damned! Some things are just wrong and Torture is one of them.

I recommend readers to the December 8 2005 House of Lords Opinion which can be found at [http://www.parliament.the-stationery office.co.uk/pa/ld200506/ldjudgmt/jd051208/aand-1.htm]
I do not know how to cite it, but a couple of excerpts follow:

82. . . . “The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it. When judicial torture was routine all over Europe, its rejection by the common law was a source of national pride and the admiration of enlightened foreign writers such as Voltaire and Beccaria”

84 . . . “The lesson of history is that, when the law is not there to keep watch over it, the practice is always at risk of being resorted to in one form or another by the executive branch of government . . .

Also, Torture is a felony. See 18 U.S.C. § 2340 et.seq. It seems to me there is something in the constitution about felonies and high misdemeanors that has some impact on presidential powers.

Finally, for those of you with intellectual yearnings read Professor Jeremy Waldron’s article TORTURE AND POSITIVE LAW: JURISPRUDENCE FOR THE WHITE HOUSE in105 COLUMBIA LAW REVIEW 1681 OCTOBER 2005 NO. 6. It is available on line at the Columbia Law Review Web Site.

Simon Phelps

Just to illuminate the coming impeachment debate a little more, I'd like to develop some terminology aimed at illuminating the contours of the Constitutional questions at issue.

In the next year to two, America will consider the question of Constitutionalism versus Authoritarianism. Constitutionalists will argue that presidents are bound by the *Constitution* even in times of war, that presidents must obey all Constitutional laws enacted by Congress, and that when Congress designates a particular act as a "felony," that presidents face the penalty of impeachment and removal from office for engaging in that particular act.

Authoritarians will argue that presidents may act with unchecked *authority* to spy on any Americans who engage in international communications, whether by telephone or on the internet, with no requirement that the communication be connected in any way to foreign powers or to terrorism, with no judicial or other oversight of any kind, and contrary to the express will of Congress.


Our country was born out of the illegal acts of elected officials. The Founders were guilty of treason, sabotage, and violent revolution in forming this republic. They were guilty of exceeding their mandate to revise the Articles of Confederation when they secretly drafted the Constitution. The Constitution itself is then the result of extralegal acts of elected officials. Yet we revere it as the foundation of our laws. We do so because history has proven that the improvisational affair that was our founding, with all its accompanying illegalities, was the right decision to ensure our survival and success.

Would we, as lawyers, have argued against the Revolution, or the Constitution, because they were illegal? Or would we have acknowledged that unprecedented times call for unprecedented measures.

Waging a global war on terrorism is unprecedented in history, as unprecedented as a successful colonial revolution or the establishment of a continental republic were at the time of the Founding. Perhaps our Constitution has not equipped us to properly wage this war, and we need to consider alternatives, if indeed we believe that terrorism posses such a grave risk to the individual survival of our people and the collective survival of our country.

Perhaps what Bush is doing is illegal (I tend to agree with Professor Sunstein that the issue is more difficult than either side seems to acknowledge). Even if illegal, perhaps it is necessary, and thus justified. In any event, I think this debate raises the very real concern that our current constitutional scheme and our success in a global war on terrorism might be incompatible, if our Constitution is deemed to overly fetter our government's ability to protect its citizens and wage this war.

Andrew Hyman

Anonymous, I think it's silliness to suggest we should abandon the Constitution.

The Amendment procedure in Article V of the Constitution allows us to change the Constitution however we please.

Your contention that the framers of the Constitution exceeded their mandate is essentially wrong. The Confederation Congress resolved, UNANIMOUSLY, to transmit the proposed Constitution to the several Legislatures. This action disposed of the argument that the convention had exceeded its mandate; in the opinion of Congress, the Constitution was validly before the people.

Incidentally, I have yet to hear anyone offer any convincing argument as to why the last sentence of the AUMF was needed, if the AUMF did not supercede any other requirements.

Andrew Hyman


The words “all necessary and appropriate force” in the 2001 AUMF cannot possibly mean “all necessary and appropriate force under all pre-existing laws.” If that’s what the AUMF meant, then the entire last sentence of the AUMF was surplusage; i.e. there was no need for the last sentence to save the War Powers Act from being superceded. The words “all necessary and appropriate force” must have referred to a degree of force sufficient to stop Al Qaeda, and therefore pre-existing statutes cannot be applied so as to defeat that congressional purpose. It’s also noteworthy that the last sentence of the AUMF was drawn narrowly; the last five words would not have been included had Congress been willing to protect all pre-existing statutes from being superceded.


Mr. Hyman: You seem to assert the language "all necessary and appropriate" force includes the right to conduct warrantless searches on american citizens. In your opinion, what doesn't it include, if anything? Assuming the validity of your interpretation of the AUMF, what showing, if any, will the president/Dept. of Justice have to make to show the searches were valid under the AUMF.

BTW, is it a conflict of interest for the Dept. of Justice to investigate the leak of the warrantless search information at the same time that the legality of its use of evidence obtained from warrantless searches is in issue? Shouldn't both issues be investigated by independent prosecutors?

David Sucher

Professor Sunstein.
You seem to accept the President's right to wiretap without warrant because it is part of a war effort "against terrorism."
Would you also -- as just one example and I am sure you will catch my drift -- also suggest that the President, as part of a war effort against terrorism may require newspapers to submit their stories on the war effort for screening before printing? If not, why not?
The point is, where does the war effort stop? If the President can listen in on conversations without Court authorization, can the President prevent certain classes of people from obtaining phone service without Congressional or Court authority? i.e. because he already has it due to one of your theories of inherent power etc etc?

David Sucher

I should add that my last hypo (comment directly above) should have been prefaced by a "for example." Moreover, there are no doubt better examples which others might offer.

Terrorism is simply one further step in the "total" and "mass" war which started with Napoleon. No longer do we have merely a few knights going forth to do battle with each other. A President might very legitimately suggest that almost every aspect of our society is part of our "security apparatus" and can both be used against us by our enemies and might in turn be a weapon against them. So, following Professor Sunstein's sympathy for unbounded Presidential authority, where do we draw the line? Is there any line left? If the President can without notice wiretap without warrants, why should he need Congressional/Court authority for just about anything?
What say, Professor? Maybe I am worrying too much? And all is well?

Andrew Hyman

Ron: I do not assert the language "all necessary and appropriate" force includes the right to conduct warrantless searches on all american citizens. In my opinion, it wouldn't include warrantless searches that violate the Fourth Amendment, for example?

Suppose it's World War II. Does anyone seriously believe that President Roosevelt would need a warrant to surveille all phone calls from Berlin to New York, or from Tokyo to Seattle. I think not.

You ask what showing, if any, will the president/Dept. of Justice have to make to show the searches were valid under the AUMF. The first showing would be conformity with the Fourth Amendment. After that, there would presumably have to be a showing that it is necessary and appropriate to do "data-mining." I suppose the harm, if any, to individual citizens would have to be assessed, and contrasted with the benefit to the efforts against Al Qaeda.

I don't think it's a conflict of interest for the Dept. of Justice to investigate the leak of the NSA program, at the same time that the legality of the program is in issue. If a leaker is caught, litigation would ensue, and the courts would be able to address the legality of the warrantless searches.

Andrew Hyman

That question mark should have been a period. Anyway, Happy New Year.

Menlo Bob

Anyone here want to speculate as to why the New York Times, with one year of time to research the issue, has simply asserted that the issue of Presidential authority is meritless, and, further, they are under no obligation to report anything other than their opinion?


I'm sorry, Mr. Hyman, but your second paragraph contradicts your first. There is no probable cause or even reasonable suspicion in your procedure. Certainly the latter is required even under the most narrow interpretation of the 4th Amendment.

I suspect that you have responded to the question obliquely because you
cannot answer it squarely. Under your interpretation of the AUMF, there is no limit, nor oversight, nor check, nor balance on the executive's power. Under your scheme, how will we even know what acts the executive is engaging in, except by so-called leaks?

It is painfully clear that there is a conflict between the justice department's investigation of the leak and their use of warrantless evidence. There is a large incentive to determine that the disclosures were illegal when they very may well be justified by the whistleblower act. If the disclosures are determined not to be illegal, then full disclosure would have to be made. This would then effect the justice dept.'s initiating such warrantless searches and using the results of such searches in their own prosecutions. I also understand the justice dept. is fighting disclosures regarding the NSA's acts.

Finally, what are your thoughts on today's revelation of Mr. Comey's refusal (and perhaps Mr. Ashcroft's) to sign off on the NSA plan? Is it clear that high level officers in the DOJ did not agree with your view of the executive powers?

Andrew Hyman

Ron, there was nothing oblique or contradictory in what I said. Perhaps you'd point out precisely what was contradictory.

In any event, I think your main point is that we will never know what acts the executive is engaging in, except by so-called leaks. Unfortunately, that's true of all secret activity of our government, and it's nothing to be pleased about. However, it's sometimes necessary. We have to rely on people who have sworn to uphold the Constitution, and hope that they'll balk if they're ordered to break the law. We also have to rely on legislators like Senator Rockefeller, who were informed about some aspects of the program, to insist on knowing more if they think laws may have been broken.

Ron, was the Fourth Amendment violated? If not, then didn't the President have power to do what he's done, assuming Congress didn't prohibit it? I think the answers are "no" and "yes" respectively. So, the real issue is not what Congress should have done, but what Congress did do. If I had been in Congress when the AUMF was enacted, I would have sought to change it, for example by inserting a sunset clause. But Congress didn't do that, so you and I have to live with it. The AUMF clearly authorized the President to use "all necessary and appropriate force" against Al Qaeda, even if that would have been prevented by previous statutes, such as FISA's 15-day limit on unwarranted wartime surveillance. The only previous statute that Congress sought to protect was the War Powers Act.

John Lopresti

*Blog requested a post retry; here it is:
I appreciate the calm ratiocination of the leading article by Sunstein.
Through all the talk of the Jackson parsing of the steel factory dispute, I have remembered somewhat dimly, and perhaps C.Sunstein will have historical research at hand to reference in this regard: that when Kennedy was quite early in his presidency there was some near mishap in the steel-labor standoff, though it did not progress to the dreaded condition of a national guard takeover to operate US-Steel; however, my thought was, in the early cabinet construct there were some notable thinkers employed, and there might be somewhere in the Kennedy archive or at the Solicitor General's office some interesting reflections on authoritarian implementations of the executive's authority as commander-in-chief, even, perhaps, some incorporation of the conditions under which martial law powers legitimately come into play, though, in the instance of the latter reflection, doubtless more pertinent would be some research performed during the social upheavals later in that same decade in the USA. I am thinking only of the 1960 year. The reason this might be important is the Kennedy associates had a better sense of historicality than those now responsible for informing the US President; and Kennedy himself was an avid consumer of history, whereas, I believe that passion only lately has begun to bloom in the current sitting President, Mr. Bush.
Regrettably, on the matters of both privacy and torture, it is a given in the vernacular world where a 500-word vocabulary suffices to conduct one's existence in the US, as well as in more educated coteries, that some element of each activity, wiretap, torture, likely both existed in some form in various places in our government for a long time.
FISA is an attempt to channel, but FISA's very existence bespeaks the malady is already abroad and, rather, needs definition, recognition, and constraint insofar as an act of congress may engender such constraint.
It is appropriate that both the administration and Department of Justice are careful to define very narrowly the targets of both unseemly activities, given their patent counterpoint to the standards which rule our society.


Mr. Hyman: The reason that it is contradictory is that the answer to the hypothetical is likely yes. The 4th amendment requires such and there is no case law interpreting the constitution that says otherwise. Even if FISA constitutes an exception, at a minimum, even under exceptional cases of border searches, special needs, etc., a reasonable suspicion must exist, or the search must be narrowly tailored to obtain the information sought. Neither exception justifies the apparent fishing expedition that went on here, particularly when no attempt was made to obtain the FISA court's approval.

The reason your response was oblique is that I asked you what limits, if any, you thought the AUMF imposed on the executive. You did not answer, but instead seemed to suggest that not obtaining a warrant (for want of a better term) from the FISA court does not violate the 4th amendment. I disagree with this view, suggested by both Professor Sunstein and Professor Kerr. I believe FISA provides an exception to the probable cause standard of the 4th amendment, but it does not eliminate it. It only applies when application to the FISA court is made. When the executive decides he does not need to meet FISA procedures, the 4th amendment applies. I have asked for anyone to provide me precedent that says the executive can conduct warrantless foreign intelligence searches involving american citizens and never received a response. A close reading of the In re Sealed Case shows that FISA procedures are closely akin to 4th amendment procedures and that the court's statement regarding executive power is worse than dicta, as it is illogical as well. Moreover, any provision of executive power found in predecessor cases will likely come before very stringent scrutiny given what has now been disclosed about the DOJ and executives abuses.

In regards to the showing that must be made, I think it will be practically impossible to make.

In regard to leaks, it is illegal in itself to classify as confidential illegal acts. See Bush executive order of 2003 at 1.7. I suspect the DOJ and Bush had a strong suspicion that they were not acting legally in bypassing the FISA court. This, of course, will be a necessary part of any investigation of the disclosure of this program.

Finally, in regard to AUMF's indefinite terms (use of force and war on terror) a statute which is ambiguous and effects constitutional rights is typically found unconstitutional by the supreme court. The people of the United States do not suffer from even the congress's impingement on fundamental rights. That is what we have separation of powers and a supreme court for.


Mr. Hyman:

I'm not suggesting that the entire constitutional system be abandoned - you are quite right that the Constitution itself allows for change. I am suggesting that the war on terror may necessitate a reformulation of the 4th amendment through the amendment process. I apoligize for the confusion.

Additionally, with respect to our sidebar on American history, while subsequent action may have "legalized" the Constitutional Convention, there is little question that at the time it was convened, and while the debates were going on, the elected officials participating therein were exceeding their authority and engaging in drastic alterations of the country's political institutions and legal infrastructure under a cloak of secrecy. I point this out only to illustrate by example that elected officials may overstep their legal powers, and still have history validate their action. Whether such is the case here remains to be seen. But I think it is at least worth considering that the war on terror presents such a grave dilema to the United States that it necessitates a change in the Constitution in order to accomodate actions like those of the current administration, if in fact those actions are currently unconstitutional.

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