Thursday, February 02, 2006

Postlegality, or Opinions Are Like Assholes: Even John Yoo Has One 

In the last couple of weeks the Go-Fuck-Yourself administration has refused to show Congress internal documents relating to its (shall we say) extensive entanglements with Jack Abramoff and its (shall we say) severely flawed management of the New Orleans disaster. Now the White House, having obviously found its groove, is flipping a third bird -- this time at the members of the Senate Judiciary Committee, who were hoping to take a gander at the legal opinions upon which President Bush based his decision to spy, in defiance of federal statute, on American citizens:
The Justice Department is balking at the request so far, administration officials said, arguing that the legal opinions would add little to the public debate because the administration has already laid out its legal defense at length in several public settings.

But the legality of the program is known to have produced serious concerns within the Justice Department in 2004, at a time when one of the legal opinions was drafted. Democrats say they want to review the internal opinions to assess how legal thinking on the program evolved and whether lawyers in the department saw any concrete limits to the president's powers in fighting terrorism . . . .

While the administration has laid out its legal defense repeatedly in the last two weeks, the formal legal opinions developed at the Justice Department to justify the program remain classified. The administration has refused even to publicly acknowledge the existence of the memorandums, but The New York Times has reported that two sets of legal opinions by the Justice Department's Office of Legal Counsel asserted the president's broad power to order wiretaps without warrants in protecting national security.

The first Justice Department opinion is thought to have been written in late 2001 or early 2002 by John Yoo, a strong proponent of expanded presidential powers in wartime. The second opinion, officials said, was drafted by Jack Goldsmith, another senior department official who later left to teach at Harvard. It came in 2004 at a time some senior officials at the Justice Department were voicing concerns about the program's legal foundation and refusing to sign off on its reauthorization.
We regret that we are unable to bring you the full opinion of Mr. Yoo, the Aleister Crowley of constitutional scholars, for he is truly the prophet of this our new postlegal age. However, several old school stick-in-the-muds, including William Sessions, Ronald Dworkin, Kathleen Sullivan, Lawrence Tribe, Philip Heymann, and Walter Dellinger, have rendered a collective verdict on the President's radically legiclastic assertions of unitary power in an open letter to Congress, and through the kind agency of Zemblan patriot M.F. we excerpt it immediately below:
With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance...may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).[2]

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

The DOJ also invokes the President's inherent constitutional authority as Commander in Chief to collect "signals intelligence" targeted at the enemy, and maintains that construing FISA to prohibit the President's actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect "signals intelligence" on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim . . . .

First, and most importantly, the DOJ's argument rests on an unstated general "implication" from the AUMF that directly contradicts express and specific language in FISA. Specific and "carefully drawn" statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the question of domestic warrantless wiretapping, including during wartime, and it could not have spoken more clearly . . . .

Second, the DOJ's argument would require the conclusion that Congress implicitly and sub silentio repealed 18 U.S.C. § 2511(2)(f), the provision that identifies FISA and specific criminal code provisions as "the exclusive means by which electronic surveillance...may be conducted." Repeals by implication are strongly disfavored; they can be established only by "overwhelming evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 137 (2001), and "‘the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable,'" id. at 141–142 (quoting Morton v. Mancari, 417 U.S. 535, 550 (1974)). The AUMF and § 2511(2)(f) are not irreconcilable, and there is no evidence, let alone overwhelming evidence, that Congress intended to repeal § 2511(2)(f).

Third, Attorney General Alberto Gonzales has admitted that the administration did not seek to amend FISA to authorize the NSA spying program because it was advised that Congress would reject such an amendment.
[4] The administration cannot argue on the one hand that Congress authorized the NSA program in the AUMF, and at the same time that it did not ask Congress for such authorization because it feared Congress would say no.[5] . . . .

Just as the President is bound by the statutory prohibition on torture, he is bound by the statutory dictates of FISA.
[8] The DOJ once infamously argued that the President as Commander in Chief could ignore even the criminal prohibition on torture,[9] and, more broadly still, that statutes may not "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response."[10] But the administration withdrew the August 2002 torture memo after it was disclosed, and for good reason the DOJ does not advance these extreme arguments here. Absent a serious question about FISA's constitutionality, there is no reason even to consider construing the AUMF to have implicitly overturned the carefully designed regulatory regime that FISA establishes. See, e.g., Reno v. Flores, 507 U.S. 292, 314 n.9 (1993) (constitutional avoidance canon applicable only if the constitutional question to be avoided is a serious one, "not to eliminate all possible contentions that the statute might be unconstitutional") (emphasis in original; citation omitted).[11] . . . .

In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.
N.B.: Before you ask, "legiclastic" is our own neologism. There is no such word, although we plainly need one like it.

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