Law & Society Blog

Suzanne Spaulding has written an excellent article in today’s Washington Post, discussing (among other things) the administration’s key legal arguments as to why the president was not bound by FISA in authorizing large scale domestic NSA surveillance. She finds:

1. That the AUMF of September 18, 2001 fails to provide the president with statutory authority to circumvent FISA; and
2. That Article II of the Constitution fails to provide the president with the inherent authority to order domestic surveillance.

As to (1):

The law clearly states that the criminal wiretap statute and FISA are “the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance. Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.

As to (2):

The administration’s ultimate argument is that “the president has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity.” This is the same argument outlined in the infamous torture memo, which concluded that the president can effectively ignore any statute that appears to infringe on this broad authority. That memo was withdrawn after it became public and was roundly criticized. The legal reasoning behind the arguments, however, has never been repudiated and appears to have resurfaced here. We cannot know for certain how the Supreme Court would rule on the legitimacy of the spying program. However, the court rejected President Harry Truman’s similar claim of broad presidential power in seizing control of the nation’s steel mills to avert a strike during the Korean War. The court, in a 6-to-3 ruling , stated that the president’s inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority — as it has in FISA — “is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress.”

Also check out Marty Lederman’s posts over at Balkinization.

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