Friday, June 20, 2008 - Posts
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continue reading at Balkinization . . .
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I simply cannot allow the opening lines of this morning's D.C. Circuit decision in Johnson v. D.C. go without comment:
Juan Johnson is a police officer whose off-duty act of kindness to a stranger in distress landed him in the middle of a drug bust in which he was repeatedly kicked in the groin by a police officer who mistook him for a criminal.
I look forward to Mike Myers's cinematic adaptation.
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Hey a question: Why is Obama silent on the FISA agreement (unless I missed something)? He has spoken out about Guantanamo, most recently in favor of the Supreme Court's decision this month allowing the detainees there to file habeas appeals. So he's not utterly unwilling to talk about difficult questions of law and national security. Is the problem this time that the deal is being styled as a bipartisan agreement, and he doesn't want to step on it by saying otherwise? Plus just not worth the political capital? Any other less obvious explanations, or thoughts about what he should do?
UPDATE: Obama just put out a statement calling the bill "a marked improvement over last year's Protect America Act." More:
"Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses...
"It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay..."
So yes, bipartisan agreement, best we can do for now. Etc.
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Dahlia, you ask with reference to the new FISA agreement: "Someone help me understand why it’s a good deal when one side gets everything it wants and the other side gets what it thought it had in the first place?"
Looking at this agreement, it seems to me that both sides got something, and both sides gave up something. Indeed, it looks like an ordinary civil-suit out-of-court settlement:
The Bush administration thought that its surveillance activities were lawful under the Constitution, the AUMG, and FISA itself, yet it agreed to bind itself to these new FISA procedures in order to eliminate the inter-branch equivalent of litigation risk. The president gave up discretion and gained certainty.
Similarly, Congress thought that its reading of FISA's applicability was the better one, yet it settled in order to eliminate the same "litigation risk." Congress got the president to commit to following these procedures, in order to maintain some degree of legislative and judicial involvement in the process.
Thus, in the end, both sides gave up something in the hopes of settling a dispute and reducing uncertainty.
Is it perfect? I suspect that neither side would say so. Is either party's compliance assured? No, because the president (Bush or his successors) may abandon the deal, or Congress (in this term or the future) may unilaterally amend the statute further.
But to say that the Bush administration "got everything it wants" and that Congress "got what it thought it had in the first place" is to wash a way a lot of the details and interests at stake.
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According to David, the Bush administration's past defense of surveillance outside of the FISA process involved "Rube Goldberg-esque theories of statutory interpretation."
Really? Looking back at the DoJ's January 2006 White Paper (pdf) on the subject, the arguments look pretty straightforward:
1. The president's inherent authority under Article II allows him, as executive and commander-in-chief, to disregard congressional regulation of those surveillance activities. (Pages 6-10)
2. The September 2001 AUMF authorized those activities, by authorizing the president "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001"; such surveillance activities are a well-recognized incident to such a war effort. (Pages 10-17)
3. FISA itself allows for the possibility of subsequent statutory grants of authority on the subject (Pages 17-28), and if that statutory provision is ambiguous, then the president should receive the benefit of the interpretative doubt because the canons of construction call for FISA to be interpreted in a manner consistent with Article II (see Point 1 above) and in harmony with other statutes (see Point 2 above) (Pages 28-36).
Now, David, let's call a spade a spade: Those are not complicated arguments. The Bush administration may be right or wrong on the merits (and I think I know where you stand on that point), but if those arguments are "Rube Goldberg-esque," then Rube Goldberg really has lost his edge.
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David, I had precisely the same reaction to the jubilant op-ed in the Washington Post today—the one that crowed about the “sensible balance” struck by lawmakers who, in order to “avert another end run around FISA,” have now made it “clear that all intelligence surveillance is governed by FISA.” Mr. President, as punishment for your decision to break the surveillance law and mislead others so they could assist you in breaking the surveillance law, we are demanding … nay, we are insisting ... that this time the law really is the law. Someone help me understand why it’s a good deal when one side gets everything it wants and the other side gets what it thought it had in the first place?
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Can the House really believe the new FISA bill means that it has reined the president in? The New York Times reports, "yes." And here's why:
Perhaps the most important concession that Democratic leaders claimed was an affirmation that the intelligence restrictions were the "exclusive" means for the executive branch to conduct wiretapping operations in terrorism and espionage cases. Speaker Nancy Pelosi had insisted on that element, and Democratic staff members asserted that the language would prevent Mr. Bush, or any future president, from circumventing the law. The proposal asserts "that the law is the exclusive authority and not the whim of the president of the United States," Ms. Pelosi said.
That was the New York Times, by the way. Not the Onion.
As everyone knows, the last version of FISA said it also was the exclusive means. In fact, it was that language that led so many to think the president's actions were plainly in violation of law, no matter what Rube Goldberg-esque theories of statutory interpretation the administration offered. So, how does immunizing that prior lawbreaking enable anyone to take seriously the claim that this new legislation is now super-duper exclusive?
Someone should ask the president whether he is now conceding that he has no constitutional authority to act in violation of this statute. And someone should ask whether he will commit to not issuing a signing statement asserting a reserved power to do what this exclusive legislation forbids. But, of course, even if he said "yes' to both questions, it would not matter. Presidents can no more bind themselves than they can bind their successors. What actually binds them is a combination of informal and formal checks, such as the specter of intensive congressional oversight, legal liability, or judicial review-checks that this bill diminishes.
Looking back at this whole affair, if this legislation passes, would you think this new statute is really super-duper exclusive, in fact, or more like kinda-sorta exclusive?
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