Who's on First?

Before we leave this issue altogether, consider the closing paragraphs of Andrew Cohen's analysis of the NSA issue, for CBSNews.

Since when is it a constitutional exercise of separation of powers for the executive branch, the prosecutor, to "ensure that civil liberties are being protected," as the Justice Department claims? If the White House had a problem with FISA procedures, as it now says it does to justify its circumvention of those procedures, then why didn't it simply ask the Congress to fix those problems? There is no way the legislators would have said no. And when does the state of emergency end? Since this "armed conflict", unlike every other "war" the United States has endured, has no theoretical end, when will conditions permit a return to the days when the government did not spy on its own people under the guise of "foreign intelligence" gathering?

There's more. "Signals intelligence" between two members of the enemy is quite different from "signals intelligence" between an innocent journalist, lawyer or author and an incarcerated terror suspect or political leader in Iraq or Iran or anywhere else. Surely the former are not "enemy forces" by any measure. So how does this factual distinction play into the legal analysis governing the president's authority to eavesdrop? The Justice Department contends that "the NSA activities are reasonable because the Government's interest, defending the Nation from another foreign attack in time of armed conflict, outweighs the individual privacy interests at stake…" but this argument proves too much. It could be used to justify any intrusion upon privacy since the defense of the Nation always will be more important than any one person's rights.

And, finally, there's the third read. Unlike many of my fellow legal commentators, I do not see all this as a slam dunk loss for the White House. Its AUMF argument is silly, to be sure, and surely FISA means something even today, but the President does have constitutional authority to engage in extraordinary measures during times like this, and it will be up to the Supreme Court ultimately to decide how far those measures can go. By the time these issues reach the High Court, Justice Sandra Day O'Connor, whose "war is not a blank check" sound byte has been rendered obsolete by the White House's position, will be gone, replaced by Judge Samuel A. Alito, Jr., whose view of presidential power is as sweeping as is that of the man who nominated him to the Court.

Perhaps there will be a political resolution to all of this. But if there is not, I'm not convinced that the legal result is going to offer much solace or comfort or satisfaction to the millions and millions of Americans who cringe at the idea that the executive branch has taken upon itself the function of eavesdropping on its citizens, without a court order, and then assuring us that it'll be all right because procedures are in place to ensure civil liberties are protected. Those assurances rang hollow in 1776 and 1787, which is why the Founders incorporated checks and balances and the separation of powers into our instruments of government. And they ring hollow today, even in a time of terror, when in order to protect our rights and liberties the executive branch has by these and other means limited them.

This is absolutely right, and shreds the paltry assertion of Scott McClellan that this was not domestic spying because one end of the phone call was in another country. But there are two other issues mentioned here: one, what will Alito do?; and two: are the courts really the best redoubt in this situation.

I think a review of the Hamdi and Rasul opinions supports Cohen's concerns, but not, perhaps, in the ways one might first think.

First, I agree with Rick: Scalia's dissent in Hamdi seems to be quite sound. Interestingly, opinions in both Hamdi and Rasul were handed down the same day. Scalia expressly connects them through his dissents in both cases, and the connection is not an idle one, because for Scalia the salient issue is American citizenship: Hamdi had it, the plaintiffs in Rasul did not. For Scalia, that makes all the difference.

Which indicates that, at least for Scalia, that issue would trump any other issues of "national security" and require the President to follow the laws.

The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal. In the Founders’ view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution’s authorization of standing armies in peacetime. Many safeguards in the Constitution reflect these concerns. Congress’s authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U.S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President’s military authority would be "much inferior" to that of the British King:

That language goes particularly to the facts of Hamdi (and the question of habeas corpus, not of 4th Amendment issues), but it doesn't even allow a crack of daylight between the express authority of the President, and the implied powers Gonzalez is relying on. Indeed, Scalia seems to expressly reject the argument Gonzalez derives from Hamdi:

It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus. A suspension of the writ could, of course, lay down conditions for continued detention, similar to those that today’s opinion prescribes under the Due Process Clause. Cf. Act of Mar. 3, 1863, 12 Stat. 755. But there is a world of difference between the people’s representatives’ determining the need for that suspension (and prescribing the conditions for it), and this Court’s doing so.

The plurality finds justification for Hamdi’s imprisonment in the Authorization for Use of Military Force, 115 Stat. 224, which provides: "That the President is authorized 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." §2(a).

This is not remotely a congressional suspension of the writ, and no one claims that it is. Contrary to the plurality’s view, I do not think this statute even authorizes detention of a citizen with the clarity necessary to satisfy the interpretive canon that statutes should be construed so as to avoid grave constitutional concerns....[citations excluded]. But even if it did, I would not permit it to overcome Hamdi’s entitlement to habeas corpus relief. The Suspension Clause of the Constitution, which carefully circumscribes the conditions under which the writ can be withheld, would be a sham if it could be evaded by congressional prescription of requirements other than the common-law requirement of committal for criminal prosecution that render the writ, though available, unavailing. If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed.

Scalia, in other words, comes down foursquare on the side of Congress to make laws, not on the side of the President to find extraordinary powers for extraordinary times. And he fully supports the basic constitutional rights of American citizens (for Scalia,Hamdi must be tried as a criminal under the treason statutes, or released; and in either case, he is entitled to at least the minimum constitutional protections guaranteed by habeas corpus. It is hard to imagine how Scalia's argument would be different on a fundamental 4th Amendment issue). As he notes in Hamdi:

The Founders well understood the difficult tradeoff between safety and freedom. "Safety from external danger," Hamilton declared, "is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free." The Federalist No. 8, p. 33.

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis–that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.

Nor does the majority opinion, written by Justice O'Connor, give the Administraiton much solace:

In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.

That's the language Cohen is referring to, when he worries about Alito's much more accomadating position. And again we see that the Administration's position is that "separation of powers" really means "separation of restrictions," so that the Executive is empowered to do whatever is necessary in time of war, and the other branches of government should only defer. As I said, the power of the Roman "dictator."

But does this mean we are out of the woods? No. Justice Thomas took what I think we can safely say will be Alito's position, in Hamdi. ("The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision.") In Rasul, Scalia was joined by Thomas and then Chief Justice Rehnquist. Scalia's dissent in that case was based on the majority's interpretation of Eistentrager, the case of "enemy combatants" captured during World War II, and on the jurisdictional issue Rasul raised:

The Court today holds that the habeas statute, 28 U.S.C. § 2241 extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This is not only a novel holding; it contradicts a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager, 339 U.S. 763 (1950).

Would Scalia dissent again, in an NSA case? Frankly, I doubt it, because domestic spying involves American citizens, and Scalia clearly would afford them, even in the face of a national security argument, at least the basic protections of the Constitution. Scalia ends his Hamdi dissent with these words, which offer no comfort to Alberto Gonzalez:

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis–that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.

But if Roberts follows Rehnquist, and Thomas remains true to his dissent in Rasul, and Alito follows his previous declarations on Presidential power, there will be a 6=3 decision.

It is said that when Chief Justice Warren was writing the opinion in Brown v. Board of Education, he held up on publication of it until he had convinced all 9 Justices to sign on. He knew the opinion was so important, and would have such an impact, that no dissent or even concurrence could be allowed. The Court had to speak with one voice and as a united bench on the issue. Such an outcome today, in any NSA case, is not only unlikely, it is almost impossible.

Which brings us to Cohen's final point: this matter requires a political solution, not just a legal one. The Court may, in the last resort, protect our liberty again, but it will do so only with the cooperation of the Executive. That cooperation the Court has no power to compel. Had Dwight Eisenhower been George Wallace, Brown v. Board of Education might well have prompted a crisis of a very different sort.

Scalia makes the matter clear: the real power under our Constitutional system resides in the Congress. It is their obligation to act. There are indications the public wants them to. In the end, it comes down to another comment by Ben Franklin. We have a republic, he reportedly said; if we can keep it.