Bush’s NSA Surveillance Program: What Happens Now?

The recent disclosure of President Bush’s secret decision to authorize the National Security Agency to spy on American citizens poses at least four central questions: (1) Is the program lawful? (2) Can the government officials who disclosed the program’s existence to reporters at the New York Times be criminally punished for this act? (3) Can the reporters be compelled to disclose the identities of their sources to a federal grand jury? (4) What can we expect from the Senate Judiciary Committee hearings, private lawsuits, and Vice-President Gore’s call for the appointment of a special counsel?

 

Much has already been written on the first of these questions. My own view is that the President’s authorization of this program was unlawful and probably unconstitutional. The administration and its defenders, of course, argue the opposite. I want to focus here not on that question, but on the three others. Let’s begin with the assumption that the NSA program is lawful. The Department of Justice has already initiated an investigation of the leak. In the course of this investigation, the DOJ will very likely subpoena the reporters and demand that they reveal their sources. As we have seen in the Valerie Plame/Judith Miller situation, because there is (unfortunately) no federal journalist-source privilege, and because the First Amendment provides only modest protection to the confidentiality of journalist-source relationships, the reporters will be ordered to disclose the information. If they refuse to do so, they will be held in contempt of court and locked away until they cooperate.

Once the DOJ identifies the leakers, it will prosecute them for unlawfully disclosing classified information. On the assumption that the NSA program is lawful, the government will prevail and the leakers will be sentenced to serious prison terms. The government’s argument will be straightforward: The United States is entitled to keep secret practices, policies and information related to the national security. Government employees have no authority or constitutional right to override the government’s judgment by deciding on their own to disclose such secrets to the public. The government will analogize the NSA situation to one in which the government breaks the enemy’s secret code and a government employee then leaks this information to the public and, hence, the enemy. It is, in the familiar phrase, a “slam-dunk.” (Because of the First Amendment, by the way, the New York Times almost certainly cannot be punished for publishing the information, even if the leak was unlawful.)

The alternative assumption is that the President’s authorization of the NSA spy program was in whole or in part unlawful. In this, more likely, situation, the terminology changes: The sources are no longer “leakers” but “whistleblowers.” In this scenario, the whistleblowers are on much stronger ground. Except, perhaps, in the most extraordinary of circumstances, the government cannot constitutionally punish its employees for publicly disclosing the government’s own wrongdoing. The government is, after all, accountable to the public. If a court finds that the President’s authorization of the NSA program was unconstitutional or otherwise unlawful, it will dismiss the charges against the whistleblowers. Moreover, the reporters will not have to disclose the identities of their sources. This is so, not because of any journalist-source privilege, but between there is no crime to investigate. (Whether the journalists can persuade the judge presiding over the grand jury to decide that question at that stage of the investigation will be an intriguing challenge for their lawyers.)

There is another wrinkle worth noting. Suppose the sources honestly and reasonably believed that the NSA program was unlawful, but the court finds otherwise. Can the leaker/whistleblowers be punished for the disclosure? The government will argue that in dealing with classified information government employees must err on the side of protecting the national security. “When in doubt, do not leak.” The government will therefore assert that these employees must be punished, regardless of their good motives, in order to deter others in the future from similarly endangering the national security. The leaker/whistleblowers will respond that because they honestly and reasonably believed that the program was unlawful it was their responsibility to bring the matter to the public’s attention. They will argue that, in a self-governing society, the government cannot punish employees for calling to public view secret practices that may reasonably be deemed unlawful. As Justice Brandies once observed, “sunlight is the best disinfectant.”

The government is likely to prevail on this issue, particularly if it can demonstrate that the NSA program is important to the national security, the disclosure seriously undermined the program’s effectiveness, there were reasonable procedures in place through which the government employees could have questioned the legality of the program without going public, and the sources failed to use those procedures. From a constitutional standpoint, this is largely unexplored terrain.

What will come of the Senate Judiciary Committee (and other congressional committee) hearings? In many respects, the situation is similar to the early 1970s, when Congress learned that the Nixon administration had improperly and unlawfully enlisted the FBI, CIA, Army Intelligence, IRS, and NSA to spy on American citizens. Those disclosures led to important legislation, including, ironically, the Foreign Intelligence Surveillance Act of 1978, which is at the heart of the current controversy.

In all likelihood, the Bush administration will resist disclosing the details of its policies and practices even to Congress, which may itself precipitate a constitutional crisis. Ultimately, however, we can expect the hearings to result in new legislation. Some of this legislation will legalize some of the surveillance techniques used by the NSA at the President’s direction. As the administration has argued, changes in technology over the past quarter-century have made some of the restrictions of FISA obsolete. (But the proper and constitutional way for the President to address this issue was not for him to implement these techniques surreptitiously and without legal authority, but to have urged Congress to amend FISA in the first place.) Some of the new legislation, on the other hand, will expressly declare unlawful some of the practices the President has authorized, particularly the complete evisceration and circumvention of the warrant requirement.

Finally, if I am right that the President’s authorization of the NSA surveillance of American citizens was unlawful and/or unconstitutional, will there be criminal and/or impeachment proceedings and what will come of the lawsuits filed by the American Civil Liberties Union and other organizations? In all probability, the private lawsuits challenging the legality of the NSA program will be dismissed on the catch-22 ground that because the program is secret the plaintiffs cannot prove that they were targets of the unlawful surveillance and therefore have no standing to sue. On this rather wooden and narrowly legalistic basis, it may be impossible for anyone to challenge the legality of the program in court. 

Al Gore’s call for Attorney General Gonzalez to appoint a special counsel to investigate Mr. Bush’s authorization of the spy program will certainly fall on deaf ears. In the absence of a massive public outcry, this is truly a case of the fox guarding the hen house. Moreover, unless it could be proved that the government officials who approved these practices (including the President) knew that they were unlawful and intended to violate the law, they would almost certainly not be convicted or impeached. But, if that is so, then what about the leaker/whistleblowers? If they honestly and reasonably believed they were acting lawfully and responsibly in disclosing this information, shouldn’t they be accorded the same protection against prosecution as the President and his agents?

Comments

[Frederick Hamilton]

Professor Stone,

Your opinion on the legality/constitutionality of NSA electronic surveillance activities against international terrorist communications into and out of the United States during a statutorily approved war will be proven quite wrong. If General Hayden, Attorney General Alberto Gonzales and President Bush are telling the truth about the very limited nature of "spying" on our enemy during a time of war then no constitutional appropriate authority (Congress or the Supreme Court)will hold otherwise. The abiltity to spy on the enemy by the commander-in-chief during a time of war (inside or outside the United States) is well grounded in the President's constituional authority. Of course, it all rests on Hayden, Gonzales and Bush speaking the truth regarding the program. I find it hard to believe they are all lying about the program.

Hamdi is an American citizen and Justice O'Connor's opinion regarding Hamdi and the legality of the commander-in-chief regarding the activities incident to fighting a war is pretty convincing. It applies to spying on our enemies during a war also.

I would refer you to the recent letter to the Judiciary Committee by H. Bryan Cunningham.

Could you please explain how either Congress or the U.S. Supreme Court will rule otherwise given the history and established law regarding spying on the enemy in a time of legal war?

Thank you.

[Dan]

Professor Stone, haven't you already given the way in which the program could be challenged in court? If a leaker/whistleblower is prosecuted, their defense may hinge on whether they are a leaker or a whistleblower, and that may very well hinge on whether the program is legal or illegal. While the targets may not be able to challenge it, the whistleblower might.

[Steven Duffield]

Prof. Stone -- Having not researched this area of law, I'm intrigued at the idea that gov't officials who disclose unlawful acts -- even when that disclosure violates laws against disclosing classified information, and, independently, can be shown to endanger national security -- are wholly protected. Is this entirely settled in the nat'l security context? (I'll go do my own reading on it, but could you point me to a few cases as a starting point?)

[Kimball Corson]

Would that the legal process more generally work with the clarity and concision Geof grants it, but accepting that, a few points:

Geof writes:

“. . . changes in technology over the past quarter-century have made some of the restrictions of FISA obsolete. (But the proper and constitutional way for the President to address this issue was not for him to implement these techniques surreptitiously and without legal authority, but to have urged Congress to amend FISA in the first place.”

I respond:

Would not seeking to amend FISA have very likely let the cat out of the bag and destroyed the secrecy sought, especially if the amendment sought were a narrow one?

Geof writes:

“ . . . if I am right that the President’s authorization of the NSA surveillance of American citizens was unlawful and/or unconstitutional, will there be criminal and/or impeachment proceedings and what will come of the lawsuits . . .”

I respond:

This is a fair question and the answer is more troubling, the more I think about it. While prosecution of the whistleblower by the Administration might get to the heart of the matter by way his or her defense, a judge could well be shy about coming to grips with so volatile an issue in that context, and surely the Administration would wise-up and drop the case before any likely ruling on legality. So if private suits are catch-22ed, and Attorney General Gonzales will not appoint a special prosecutor, and the Justice Department, which defended and provided some counsel on the program, finds nothing unlawful about it (its conflict of interest being a key reason for a special prosecutor), and the Republican-controlled Senate Judiciary committee’s investigation is not likely to go anywhere -- nor is it the one that really matters because the House Judiciary Committee is charged with commencing impeachment inquiries -- is it not the case that Republican dominance over both houses of Congress and the lack of an earlier judicial resolution on legality make any action unlikely? Further, even if impeachment charges are brought by the House, is the Republican Senate, with Chief Justice Roberts presiding, ever likely to impeach? As for any prospective massive public outcry, has not the Administration already taken care of that by telling us over and over that the surveillance program was lawful and done to protect our nation? Also, is not fellatio and a fib about it much more easy understood by the American public than an issue buried deep in the jungle of the Fourth Amendment?

In summary, do not the need for secrecy for national security purposes and Republican political muscle in Congress carry the day, and, just as Geof says, leave the fox to guard the hen house? Such muscle takes us a long way down the road toward “might makes right.”

As usual, the admixture of politics and law is a nauseatingly bad one, and here again we can see why.

[Geoffrey R. Stone]

Some responses:
1. To Frederick Hamilton: I take it you're suggesting not that the spy program doesn't violate FISA, but that FISA is unconstitutional insofar as it limits the president's authority as commander-in-chief. Hamdi doesn't help the president in this regard because the Court in Hamdi made clear that the president did not have the authority to detain Hamdi indefinitely without a hearing. That, it held, would violate due process. Certainly, a long and well-established practice of searching American citizens without a warrant in wartime would be relevant to the Article II claim. But I think the administration exaggerates the extent to which this was so historically. And, of course, a history of unlawfulness does not establish lawfulness when the issue has never been addressed. There is no "established law" regarding this sort of activity. I agree that the narrower the program, the greater the likelihood that it will be upheld. But from what I've been able to tell, it is not narrowly drawn, although this may all be in the eye of the beholder.
2. To Dan: Yes. I think that's the most likely route.
3. To Steven Duffield: There is no establilshed law of this, either. I suppose one could imagine a situation in which the disclosure of an unlawful program would also seriously jeopardize the national security. For example, suppose the government learns through clearly unlawful surveillance how to break the enemy's code. X discloses both the unlawful surveillance and that we have broken the code. Assuming it's possible to separate these two revelations, I suppose the employee can't be punished for disclosing the surveillance but could be punished for disclosing the code breaking (on the theory that the fruit of the poisonous tree doctrine is inapplicable here). But if it is impossible to disclose the illegality without also disclosing something that harms the national security, I would be inclined to protect the whistleblower unless the harm to national security is extremely grave.

[Kimball Corson]

The "time of war" exception arguably allowing for lesser constitutional protections under the Bill of Rights may come to grow tiresome and stale if life and business in our country continues as usual and our “war on terrorism” persists unabatedly for too long – a sort of Israeli problem in duration, if you will. Islam’s conflicts with western values, attending the rise of Islam world-wide, raises this possibly as does our continuing attachment to the nuclear preemption doctrine.

We had not extracted ourselves from Afghanistan, before attacking and waging war in Iraq. We now have troops in both countries. Iran, with its nuclear defiance, is a new potential war front for us, according to that doctrine and Senator McCain’s recent comments. Are we to attack Iran too? North Korea is yet another target (although senselessly, while the threat may be greater, we seem less concerned), and greater instability in Pakistan, itself a nuclear power and Islamic country, could call for our presence there too.

One problem of the preemption doctrine is that as we put out troops in more Islamic countries that only exacerbates animosities against us, and an ever greater veil of secrecy comes to surround too much more of what we need to know in order to assess the reasonableness of the restraints on our liberties in “war time” and the scope of the true threats against us on our own soil. That is very troublesome. To be sure, Bush will tell us, most generally, his surveillance and efforts have thwarted many attacks upon us here in America and that we should trust him in these regards and give up some of our liberties. But should we? What is the truth here? Is there another agenda behind the preemption doctrine? Who has oversight responsibility? Or is this a run-away Administration?

[Frederick Hamilton]

Professor Stone,

I guess I am too trusting. I believe Hayden, Gonzales and Bush. I don't believe they are intent on spying on Americans for sinister reasons. I, like most Americans, believe any president (Bush, Clinton, Roosevelt, et al) has the authority provided by commander-in-chief war powers to intercept any communications with an enemy we are at legal war with. They are being "reasonable" in their searches. I also agree with Gonzales as he writes in today's WSJ editorial: "The AUMF is broad in scope, and understandably so; Congress could not have catalogued every possible aspect of military force it was endorsing. That's why the Supreme Court ruled in Hamdi v. Rumsfeld that the detention of enemy combatants -- a fundamental incident of war -- was lawful, even though detention is not mentioned in the AUMF. The same argument holds true for the terrorist surveillance program. Nor was the president's authorization of the terrorist surveillance program in violation of the Foreign Intelligence Surveillance Act. FISA bars persons from intentionally "engag[ing] … in electronic surveillance under color of law except as authorized by statute." The AUMF provides this statutory authorization for the terrorist surveillance program as an exception to FISA."

As you say, narrow in scope may be in the eye of the beholder. No, I must respectfully disagree. It should be easy to prove (behind closed doors at the Judiciary Committee hearings I suspect) that truly the experts at NSA are only going after internatinal calls between at least one strongly (read "reasonably") suspected member of al Qaeda or similar terrorist group. Most Americans want our government listening in on al Qaeda. Could 9/11 have been prevented if we had listened in on the calls of the two al Qaeda operatives in California as they were placing calls from within the USA to their co-conspirators outside the USA? I don't know. But, you don't know either. I visited ground zero two months ago. It has a way of focusing one's mind on trying to figure out al Qaeda's next horrific attack.

Neither FISA nor any other statute passed by congress can ursurp a presidents constitutional powers. Nor can a president ursurp Congress' or the Supreme Court' constitutional powers. If it reaches the Supremes (and any court challenge will quickly be moved from any lesser court or lesser federal judge to SCOTUS) I cannot imagine the SCOTUS not allowing evesdropping on the enemy as not being incident to waging war.

Again, a potential big if, but if indeed NSA has structured the electronic searches to be narrowly tailored to international terrorist calls, do you really thing the searches are unreasonable? Not in keeping with Article II as incident to war? Or that the AUMF was not a legally passed statute as spelled out in FISA law and articulated by Gonzales?

I know that the hate Bush crowd wants a piece of his hide, but I don't think they are going to get any of it on this issue. Hate him or love him, the president should be impeached if he doesn't use every legal tool at his disposal to prevent attacks against America by a very nasty bloodthirsty enemy.

I suspect most Americans and certainly the SCOTUS will be persuaded by the administrations arguments (again assuming the attempt to "limit" the nature of the NSA evesdropping is a true effort. Eye of the beholder doesn't get it.

Thank you.

[Rain Rain]

So the question is not whether Bush broke the law; the question is whether it was okay for Bush to break the law.

Hmm... tough one.

[Frederick Hamilton]

No, no and no. Of course the question is did Bush break the law. My position and the one I believe will be upheld is that he did not break the law. Fair enough if you think he broke the law. I don't. SCOTUS won't think so either. No constitutional crisis in the making on this one. Sorry.

[Larry]

"Vice-President Gore"? Don't you mean "private citizen (with an axe to grind) Gore"? I hardly think his call for a special counsel should hold any more weight than an average citizen's letter to the Chicago Tribune.

[Bob]

Are we currently at war? As per the Constitution, only Congress can declare war, could you point me to the congressional declaration please?

[Fred]

We've been at war many times without officially declaring it. We've only declared it five times in our history, in fact, the last time being WWII. Legally, this isn't that significant. First, the President is still Commander In Chief and when we're engaged in conflicts, he has a fair amount of leeway to take actions to stop the enemy. The question here is how much leeway.

I might add the Congress is fully aware we're in a war, and thus voted to give the President special authorization to fight it, even if it's not "official."

[Brendan Averett]

I find it interesting that in all the mentions of the Hamdi case, nobody mentions the important limitation included in Justice O'Connor's oft used quote...

"We conclude that detention of individuals falling into the limited category we are considering..."

When she refers to the "limited category", she is referring to "individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF."

It is obvious that the battlefield capture of an individual who joined the Taliban Army in Afghanistan – who was there fighting against US forces – is an incident of war. But Hamdi deals only with this "limited category". The court concluded that it is necessary and appropriate force to detain such an individual in the manner that he was because he was a member of this particular "limited category".

This does not mean that the general language of the AUMF authorizes whatever the President wants to do to fight terrorism.

[Brendan]

I find it interesting that in all the mentions of the Hamdi case, nobody mentions the important limitation included in Justice O'Connor's oft used quote...

"We conclude that detention of individuals falling into the limited category we are considering..."

When she refers to the "limited category", she is referring to "individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF."

It is obvious that the battlefield capture of an individual who joined the Taliban Army in Afghanistan – who was there fighting against US forces – is an incident of war. But Hamdi deals only with this "limited category". The court concluded that it is necessary and appropriate force to detain such an individual in the manner that he was because he was a member of this particular "limited category".

This does not mean that the general language of the AUMF authorizes whatever the President wants to do to fight terrorism.

[regular guy]

1. "if I am right that the President’s authorization of the NSA surveillance of American citizens was unlawful and/or unconstitutional, will there be criminal and/or impeachment proceedings and what will come of the lawsuits" what makes you rush to this conclusion? a) his party controls both houses, and will retain control of at least one, thus making impeachment near impossible barring they turn on him. And history tells us otherwise - was Truman tried after Youngstown? No, neither will Bush.

2. I love reading those who say the question isn't whether Bush did something illegal, it's whether he did something illegal and should get away with it. This is sad, really sad and pathetic. Basic law 101, the constitution trumps statutes. The basis of saying he did something illegal is FISA, but anyone who's studied a day in law school knows that FISA can't encroach on the president's inherent constitutional powers. The only way this was illegal is if his CIC powers do not include this, which history and common sense tells us it does. Even if, his fall back, the Youngstown analysis relying on the AUMF would probably hold up.

3. The AUMF is not a free for all, and the powers allegedly conveyed by it are not limitless, nor unable to be reigned in. Not only can Congress pass a new resolution spelling out more clearly what's in and what isn't; thereby changing the entire legal foundation of Bush co., but they have other powers as well, eg. the spending power, calling up/bring back the troops, etc. Moreover, the terms and analysis limits his powers to a) things related to al qeada/terrorism, which every dems says they are fine with, and b) to things that are understood to be part of the business of war, study history, things like surviellence, detention, etc. aren't strange novel concepts, and the people who've done them don't all have Rs next to their name. This misunderstanding reflects some americans' total ignorance re: history, the military, and war in general.

4. AUMF. Read the original padilla disctrict court case, then read the 4th circuit's opinion by Luttig overruling that decision. Be careful, there's lots of padilla things out there, so be sure you're reading the opinion of Sept/Oct. 05 from the 4th circuit BEFORE the controversy about transferring Padilla to the criminal system. I direct you there for one reason: comparing the two opinions = comparing how libs/dems and cons/repubs view this issue clear as day. For example, in the original decision the judge can't bring himself to accepting that the US is the battlefield and that some Americans are the enemy. It's not totally fair to say, but the criticism that some are still living in a pre-9/11 world bears some truth and its evident in the original opinion. The Hamdi case demonstrates that the SC "gets it" and I highly doubt they wouldn't read this power into the statute. To me, this is not what it's all about....

All it's about is 1) checks and balances, someone (congress) feels like the power isn't being shared nicely with everyone, so they want to check the president. Some deal will be worked out and everything will go away. 2) all of this of course (the legal arguments and the practical resolution) hinge on the truth of this program. Once it's revealed that this is larged than original said, Bush is done, and that will be a sad day.

In the 1990s we had a man who started a war despite explicit denial by Congress. Total lowest ebb re: Youngstown. Congress explicitly denied the power, he did it anyway. Here we have a president who sought the power and was given it, twice. Unlike in the past when warrantless wiretaps were used and other similar snooping (eg using the IRS to go after women accusing you of rape), this has been used to defend America. If GWB is removed from office for doing too much, while Clinton wasn't for doing too much for a cause that didn't directly benefit America (kosovo), and for not doing enough (dare I say anything) to defeat Al qeada, I will have to accept that we have been the American Union and I'll hang my european flag outside and hope India, China, Russia, or Australia are there to defend us after the next attacks.

Congress should do what it's doing, speak to the president about this. And if they truly want to do something, they can, and they have lots of options. Let's stop the nonsense, the hysteria, and focus on reality and the facts.

[Kimball Corson]

Fredrick Hamilton writes:

That he believes the Administration was not ". . . intent on spying on Americans for sinister reasons . . .

I respond:

I don't care what their motives are; I care what they are doing to our liberties.

Regular Guy writes:

"Basic law 101, the constitution trumps statutes. The basis of saying he did something illegal is FISA, but anyone who's studied a day in law school knows that FISA can't encroach on the president's inherent constitutional powers."

I respond:

Why not argue instead that, when it comes to Basic Law 101 and trumping, the Fourth Amendment, as expansively interpreted by FISA for "war time", trumps the Administration doing what it wants contrary to that Amendmant, especially where better scholarship does not believe the President's inherent powers can reach so far or over so much. This is what we should be focusing upon, not some weak ex-post rationalization for the President doing what he did. The truth is Bush's advisers thought the cloak of secrecy and Republican control over both houses would let Bush get away with braking the law. Indeed, the latter might, but at least secrecy is out the window.

[Rain Rain]

I didn't claim the President did something illegal; I merely pointed out that he broke the law. What else would you call what he did? It was a law, and he broke it.

Sheesh.

[Frederick Hamilton]

Rain Rain,
Please. You must have graduated first in your law school class. Only a very smart attorney would make the claim "it depends on what the meaning of is is" or "he didn't do anything illegal, he simply broke the law". Not nice to make such a claim on such a prestigous a blog as the U of Chicago Law School Blog.

Sorry. Nothing illegal. Nothing even broken. Constitution trumps statute. AUMF statute trumps FISA statute. Only democratically congressional or electoral decisions that trump the present constitution are called constitutional amendments or congressional statutes deemed constitutional. Amending is tough and passing a new statute limiting the executive against the enemy in a time of declared/statutorily approved war quite unlikely. SCOTUS, if there is to be one, will be the ultimate arbiter of this dispute between legislators and the executive and they will rule for the executive with the statutorily approved war per Article II and 4th Amendment "resonable" searches. Quite resonable to "search and seize" the enemy. Thank goodness law school professors and "breaking the law but not illegal" folks are not allowed to be the final arbiter of what is legal or not.

[Rain Rain]

Doctor Hamilton-

First in my law school class? From your lips to God's ears.

You seem very certain of how the Supreme Court will rule, if and when; but it seems to my not-yet-professional eye that both Congress and the courts are becoming increasingly uneasy... nudging "annoyed"... at where this Administration has chosen to draw the lines vis a vis the separation of powers. See, for the best instance I know of, the Fourth Circuit's December 21, 2005 smackdown of the administration's "first in their law school class" style legal shenanigans. (I think maybe whoever thought that one up was second or third in his class.)

Will there be a Constitutional crisis? I doubt if any branch of the government as presently constituted will allow it to come to that, for reasons of ideological and party interest, if for no others. Should there be a crisis? Speaking as an interested spectator, it would be a hell of a show, and I'd love to watch.

And by the way, if Constitution trumped statute in every case, my unambiguously granted right to keep and bear arms could not be infringed, and I'd be able to keep a nuclear weapon in my living room if I so chose. But I can't.

Those darned lawyers, always parsing the meanings of words...

[Frederick Hamilton]

Rain Rain,

Good show ol' chap. Agreed that the Bush Administration doesn't always get it right, but who does. Yes, totally convinced that the Supremes will rule (if it ever gets there, doubtful) that spying on al Qaeda (and their next of kin terrorist cohorts) during this time of war (see AUMF) is as constitutional as the income tax. Shouldn't wager on a law school blog but if interested......

Indeed, Brother Luttig and his friends on the Fourth Circuit slapped the Bush Admisnistration across the face, but they had it coming on that issue. But it was a backhanded slap that said they had it right the first time and don't play legal games with incarcerated terrorists. If you want to keep 'em, keep 'em.

As to your desire for nukes, I tried to be careful by saying "statutes deemed constitutional" not any darn statute. Any statute that passes constitutional muster is the law of the land. That keeps those nukes out of your living room. And listening in on al Qaeda hopefully keeps nukes out of Chicago and Pittsburgh.

I am also like you and would like to see a constitutional point (crises?) made over the NSA program as it would be a true hell of a show. A great civics lesson for the people. A chance to witness a separation of powers struggle up close. Also a chance to continue to show that Democrats don't know when to fold 'em and join in the cause of kicking the s*** out of the Islamic terrorists who want death, mayhem and destruction in our streets and a turn to some wonderful law......Sharia. Yes, agreed let the show begin. We Americans deserve a good one for a change. Not the anemic attempt to paint Alito a racist and a neanderthal. An honest to goodness fight over "spying on the enemy". Good Show indeed.

[Kelly Almond]

What about the president obtaining a search warrant after the fact? As far as I understand, the president could have done this but did not. The fact that he didn't obtain one is a concern to me. Can't the president get what he wants by going through the proper channels? After all the dust settles, I think that the President will not be impeached and new legislation will need to be passed to address this problem. I feel uncomfortable with simply trusting the president. I want a law that explains exactly what a president can and cannot do with regard to wiretapping American citizens during this War.

[Bob]

I asked aerlier:

"Are we currently at war?"

Fred responded:

"First, the President is still Commander In Chief and when we're engaged in conflicts, he has a fair amount of leeway to take actions to stop the enemy. The question here is how much leeway."

Didn't Bush state that the Iraq conflict was over. If we are not currently at war, then Bush is no longer the "Commander in Chief," which is a position he assumes only when we are engaged in a conflict. So, he has no more leeways to do anything, including spying.

I also asked:

"As per the Constitution, only Congress can declare war, could you point me to the congressional declaration please?"

Fred responded:

"I might add the Congress is fully aware we're in a war, and thus voted to give the President special authorization to fight it, even if it's not official."

True, but wasn't the purpose of giving the Congress the power to declare war to keep this power from the Executive so that the President would not become a dictator? So that the President could not, in essence, have dictatorial powers to use our military whenever he chooses. Wasn't this exact power (to declare and make war) the main reason behind the separation of powers? I don't see anywhere in the Constitution that allows the Legislative branch to delegate it's powers to the Executive branch. To do so is unconstitutional.

[The Law Fairy]

If we're at "war" simply because the president is sending innocent young men and women to shoot guns, blow up things, and possibly get killed, and Congress is too busy pandering to interest groups to bother worrying about placing a "check" on the president's power -- then doesn't this cut all ways?

Could former President Clinton have tapped phone calls made by American citizens with relatives in Kosovo whenever they made international calls to their Afghani relatives?

If we get another President Clinton and she decides to fight a War on Sexism in Pakistan, does she then have the right to have the NSA tap phone calls made to suspected Pakistani sexist authorities?

I'm just trying to see how consistent these views are even when different parties are in control.

[JackD]

For those of you convinced that the administration's actions are constitutionally permissible, do you conceive of any remedy in the unlikely event that the administration is using its power for impermissible purposes, such as monitoring individuals and groups opposed to its policies?

As for the declaration of war issue, Congress authorized action in Afghanistan and Iraq. Who gets to say when those conflicts should be deemed "done" and the extraordinary powers claimed by the administration no longer "operative?"

[Frederick Hamilton]

JackD
Of course one can conceive of actions if the President and his administration are using the capabilities of NSA for "impermissible purposes, such as monitoring individuals and groups opposed to its policies." Impeachment would work just fine. Charging General Hayden and Attorney General Gonzales with crimes would be another. Many remedies are available. Not hard to come up with any number of legal/criminal/penalties. Problem is JackD they are not inclined to pull a Robert Kennedy and wiretap Dr. Martin Luther King, Jr. Nope. If General Hayden and the NSA were asked to do that, no doubt they would say no sir and in the next breath turn President Bush over to Congress for impeachment.

As to your second point. Wrong. The AUMF was against al Qaeda and associated terrorists wherever they were perpetrating or planning their crimes against us and humanity. The AUMF was expansive in that regard and had no restrictions limiting all necessary activity to only Afghanistan and Iraq. In fact, there was a second vote to authorize the war against Iraq. AUMF was on September 18, 2001. It allowed the use of force against terrorists wherever they were found. It also carried the full authority of going to war and consistent with the Presidents war powers and I quote: "is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution."

The second war vote was on the Iraq war and was on October 11, 2002. It passed both houses of congress with no changes of the house version by the senate and went to President Bush for his signature. It authorized the war against Iraq.

As to when the "wars" are over. Good question. Hard to answer specifically. With the first war vote, I suspect the war against the terrorists will continue for a number of years at least. The second war, Iraq, looks to end within the next couple of years. Congress always has the capability to cut off funds for either war at any time.

Congress has many authorities as a co-equal branch of government. Fortunately for the country, being the armchair commander-in-chief of the military in a time of war isn't one of them. Article II of the constitution does carry quite a bit of weight. This present kerfuffle is fun to watch, but the president is on firm ground on spying "on the enemy" wherever they are. Even in the U.S. Fortunately most Americans (upwards of 70% or more) want our government to be not only listening to al Qaeda in this country but to be inside their minds if they could be.