Category: Constitutional Law

17

Did Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?

whitehouse4.jpgYesterday, I blogged about a startling story in the NY Times about President Bush’s authorizing the NSA to conduct domestic surveillance without a warrant or even a court order. According to the NY Times story, the “legal opinions that support the N.S.A. operation remain classified.”

Today in the NY Times is a follow-up story about the legal basis for the President’s actions. According to the story:

[S]ome legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush’s assertion of his powers.

“Obviously we have to do things differently because of the terrorist threat,” said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. “But to do it without the participation of the Congress and the courts is unwise in the extreme.” . . .

William C. Banks, a widely respected authority on national security law at Syracuse University, said the N.S.A. revelation came as a shock, even given the administration’s past assertions of presidential powers.

“I was frankly astonished by the story,” he said. “My head is spinning.”

Professor Banks said the president’s power as commander in chief “is really limited to situations involving military force – anything needed to repel an attack. I don’t think the commander in chief power allows” the warrantless eavesdropping, he said. . . .

In engaging in the surveillance, the President may have ignored the legal procedures set forth in the Foreign Intelligence Surveillance Act (FISA) of 1978.

The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a “foreign power” or an “agent of a foreign power.” 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the goverment must establish probable cause that the party’s activities “may” or “are about to” involve a criminal violation. Id.

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2

Government and Disasters: The Emergency Commandeering Option

Destruction.jpgHurricane Katrina demonstrated the problem, inherent to federalism, of federal-state coordination in responding to emergencies. When emergencies overwhelm localities and states, an effective response requires the assistance of the national government. Yet the national government itself is ineffective if it cannot quickly and efficiently coordinate and work with state and local personnel who—because they vastly outnumber federal civil personnel and are in the immediate vicinity of the emergency—necessarily carry out much of the response effort on the ground.

Thus, when it became clear that state and local officials could not deal adequately with Katrina’s aftermath, the President requested Governor Louisiana Kathleen Blanco to place New Orleans’ police under the control of federal officials so they could coordinate the overall response. Concerned with yielding control, the Governor refused the President’s request. As a result, federal and state personnel responded to the hurricane’s aftermath without the benefits of a single command structure; while people perished in New Orleans, officials argued about who was actually in charge.

So far, the only solution presented to this problem of federal-state coordination is itself highly problematic: the federal government can bypass civilian workers entirely and deploy the national military in their place. During Katrina the President considered this option, and the President has since called on Congress for specific authority to mount a military response to future domestic emergencies. However, the use of troops, currently prohibited in many circumstances under the Posse Comitatus Act of 1878, carries risks: professional soldiers, armed and ready for warfare, might produce order at the price of liberty.

There exists an alternative solution to the problem of federal-state coordination in emergencies, one that has been used at various times in our history, and that is based on some forgotten provisions of the Constitution. The solution is to allow the national government, in responding to certain kinds of emergencies, to call into periods of mandatory federal service local law enforcement and other personnel of the state in which the emergency occurs and, where needed, personnel from neighboring states.

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6

Is the Supreme Court Moving to the National Mall?

supreme-court-on-mall2a.bmpI was reading a Washington Post article about plans to expand the Mall in Washington DC because of all the clutter from new monuments, museums, and memorials. On this page, the Post has a few visions for the new expanded Mall, which would utilize East Potomac Park. I was quite surprised when I read the caption at the top of the drawings:

Architects have responded to a call for ideas on expanding the Mall, particularly into East Potomac Park, with visions of plazas, museums, a new Supreme Court building, stores — and beaches.

Many people’s first reactions might be: Beaches? In Washington, DC? But I’m a law nerd, so my reaction was: A new Supreme Court building? On the Mall?

Sure enough, one of the proposals has a new Supreme Court building sitting not too far from the Jefferson Memorial. I’m not too keen on this idea.

First, I think that the current Supreme Court building is glorious, and I wonder whether we really need a new Supreme Court building. As Jason Mazzone notes, the Court certainly hasn’t been expanding its workload of late, so why would it need more space?

Second, I wonder whether the new location is a commentary on the Supreme Court. Instead of its current location behind the Capitol, it will sit rather isolated in a place near memorials. Is this insinuating that the Court has become isolated and aloof, sitting on an island practically all by itself? Is it insinuating that the Court has become an historical relic, something that mattered once in the past but that is now relegated to serving largely as a memorial?

Related Posts:

1. Solove, Old Courthouse Architecture

2. Solove, New Courthouse Architecture

3. Solove, More New Courthouse Architecture

16

Democratic Searches and Seizures

hands_up.jpegThe Fourth Amendment protects us from unreasonable searches and seizures. In the subway case upholding random searches of bags, Dan criticizes the court for giving too much deference to the police department.

I disagree.

The subway searches are a good example of what I call democratic searches and seizures. The basic idea is this: if a search or seizure is authorized by a majority of the community—the best evidence being that it occurs pursuant to a validly enacted law—and the members of that majority are themselves subject to the search or seizure, then the search or seizure is reasonable.

Under this standard, the search or seizure is democratic in two senses: a democratic majority approves it and a democratic majority is subject to its effects.

If both of these conditions are met, courts should not invalidate the search as unreasonable under the Fourth Amendment.

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8

Subway Searches: A View from New York

Like Dan Solove, I think that police searches of New York City subway riders are unlikely to catch terrorists attempting to carry bombs or poisons into the transit system. But to assess the effectiveness of the searches by that measure is too narrow.

I see the subway searches as a show of force—and, like many New Yorkers, I am glad we have them for that reason.

New York City is at the top of terrorist hit lists. Though the federal government should take responsibility for protecting vulnerable locales, it has proved stingy and incompetent. New York City shoulders a good part of the homeland security burden.

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3

The South Africa Marriage Case

simpsons_wedding.jpgOn December 1, 2005, the Constitutional Court of South Africa, in Minister of Home Affairs v. Marié Adrianna Fourie, ruled that laws denying same-sex couples the ability to marry violate the equal protection provision of the South Africa Constitution and the provision prohibiting unfair discrimination on the basis of (among other things) sexual orientation. The Court gave Parliament one year to fix the laws to extend equal marital rights to same-sex couples.

Loving v. Virginia (1967), in which the U.S. Supreme Court struck down Virginia’s ban on interracial marriage, is the most aptly named case in all of American jurisprudence. It’s equally appropriate that the lead plaintiff in the South Africa case extending equality in marriage has the first name of Marié.

There is much to admire about the South Africa Court’s decision. It represents the triumph of equality and compassion over exclusion and small-mindedness.

Whatever one’s views about the relevance of foreign legal decisions, there is something to learn from this one. The Constitution of South Africa and the post-Reconstruction Constitution of the United States were both designed to end institutionalized inequality. When South Africa tells us that full equality includes equal access to marriage, we should listen.

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6

Alito’s Footnote 10

Judge Alito’s June 3, 1985, strategy memo to then Solicitor General Charles Fried on Thornburgh v. American College of Obstreticians has gotten some recent attention on the blogs and in the news media. Fried’s cover note was a sure red flag that this would be better than a mere thank you note: “I need hardly say how sensitive this material is, and ask that it have no wider circulation.”

I haven’t seen extended focus on footnote 10 of the memo, which might become relatively significant at Judge Alito’s confirmation hearings. Alito’s strategy memo is a case for not directly attacking Roe. However, he didn’t want the readers of the memo to think that this strategy “even tacitly concede[s] Roe’s legitimacy”. Quite to the contrary, footnote 10 states:

The case against Roe v. Wade has been fully and publicly made. See, e.g., A. Bickel, The Morality of Consent 27-29 (1975); A. Cox, The Role of the Supreme Court in American Government, 112-114 (1976); Epstein, Substantive Due Process By Any Other Name, 1973 Sup. Ct. Rev. 167-185; Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920 (1973). In Akron, the Court’s reponse was stare decisis and the “rule of law.” [emphasis added; small typos corrected; formatting made simple]

It is this last sentence that caught my eye. The implicit message of the paragraph is “lots of really smart folks have demonstrated that Roe was wrongly decided and the only thing the court could say in response was ‘stay the course’!” The sentence makes it significantly harder for Alito to follow Justice Roberts’ path, and rely on paeans to the rule of law and stare decisis in response to questions about Roe. He’s already told us what he thinks about that response, and it isn’t much. Instead, Alito might be forced to actually say that he believes Roe should be reversed.

I think that the memo makes it incrementally more likely that we will see a filibuster, and somewhat more likely that we’ll see a test of the flypaper thesis of supreme court nominations I proposed here.

15

Why does the Supreme Court accomplish so little?

Last term, the Supreme Court issued opinions in just 74 cases. That’s pretty pathetic. It means there are many areas of the law that are unsettled or unreviewed; many important issues in which the Supreme Court could helpfully weigh in but it doesn’t; many issues that, once decided, will not reach the Court again for decades, if ever.

A low number of cases does not, however, mean light reading. Many of these 74 cases produced multiple opinions by sub-groups of justices. It’s not hard to see why this is true. Divide 74 up among nine justices and 30-plus law clerks and the temptation to write separately is irresistible.

Most of the 74 opinions are also lengthy and convoluted, larded with unnecessary detail and footnotes, and containing inappropriate swipes at the work of the other justices. As a result, most opinions are inaccessible to non-specialists. It is a rare delight these days to get an opinion that crisply and simply sets out the decision of a unanimous Court. Were it not for people like Linda Greenhouse of The New York Times, skillfully decoding the justices’ language, the general public would have no idea what the Court was doing.

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4

The intellectual origins of Roe . . . in a law review

hull_abortion.jpg

Here’s a nice piece of trivia: what law review article laid the blueprint for Roe v. Wade?

Thanks to Orin Kerr’s link to Judge Raymond Randolph’s thought-provoking speech to the Federalist Society on Judge Friendly’s unpublished 1970 draft opinion on abortion rights, I learned something about my school’s history: that Roy Lucas, then an assistant professor at the University of Alabama, published an article in 1968 in the North Carolina Law Review, which (according to Judge Randolph) “laid out a blueprint” for applying Griswold to state anti-abortion laws. Of course, proving influence in the evolution of constitutional thought is a remarkably difficult enterprise. But some knowledgeable people nevertheless believe the article to have been quite important. N.E.H. Hull, Williamjames Hoffer, & Peter Hoffer include an excerpt from the article in their important book, The Abortion Rights Controversy. They say of Lucas’ article that it was a “vital source of ideas for the frontal attack on criminal abortion statutes.”

Hmm, I thought upon reading this, how surprising. I try to pay some attention to my school’s history. I’ve heard some pretty interesting stories about Alabama law faculty. For example, Professor Jay Murphy‘s advocacy in the pages of the Alabama Law Review helped defeat some of the legislature’s proposals to resist desegregation in the immediate aftermath of Brown.

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5

Legal Realism and the Lefty Blogosphere

The dispute between Prof. Althouse and various lefty blogs continues. Most recently, “Armando” of Dailykos posted this screed. Armando concludes:

In short, does not Althouse admit that she too, is a legal realist? And given that admission, is it not fair to expect that Althouse would approve of a query in detail regarding Alito’s views on legal issues? Is it not fair to expect that Althouse would not condemn critiques of the results of Alito’s opinions without trying to engage in hypertechnical “gotcha-isms”?

I am interested in the idea that legal realism entails a commitment to “query in detail . . . Alito’s views on legal issues.” There are lots of different types of folks who we might think of as legal realists, and I doubt that they could find a consensus about a definition of the school of thought, let alone a position on the scope of the Senate’s advise and consent role. But it is an provocative idea, wrapped in some hyperbolic clothing.

Armando continues:

[E]ven a legal realist like myself understands that the judicial rules place limits on how much wiggle room judges have to achieve their desired results. Concepts like precedent, consistency, rules of construction, political question doctrine, etc., place limits on the ability of judges to render any result they deem the correct one. And in a case like Bush v. Gore, adhering to those rules is more important by a factor of 10 than in any other case. It is precisely because of what was being decided that the SCOTUS’ actions in Bush v. Gore were egregious in a manner almost unequalled in the history of the Court. They should never have taken the case period . . .

Finally, what was the essential difference between the actions of the Florida Supreme Court as compared to the SCOTUS’? Very simple. The Florida Supreme Court HAD TO DECIDE the case. It had no choice. It could have ruled in favor of Bush or in favor of Gore. But it HAD to rule.

The Supreme Court of the United States had no such compulsion. Cert denied is all they had to say. They chose to do otherwise.

I think Armando is flat wrong here. Gore v. Harris, the ultimate Florida Supreme Court merits decision in the litigation, appears to be an exercise of discretionary jurisdiction under Section 3(b)(5) of the Florida constitution. But maybe that is the type of “hypertechnical gotcha-ism” that I ought to be avoiding. Whoops.