All Intensive Purposes

Virginia Patriot takes the White House's side of the argument about the legality of whatever it is that the NSA has been doing. I'm going to take a whack at a response to him.

(I note parenthetically that a lot of conservative blogs suggest that the NSA is looking only at international communications with members of Al Qaeda, while a lot of lefty blogs suggest that the Administration is poking through all manner of domestic communications. My understanding is somewhere in the middle. If I've got it correctly, the Administration is following up on leads suggested by, e.g., information connected abroad, and in doing so may be intercepting communications involving U.S. residents and citizens who are a few degrees of separation away from anyone in Al Qaeda. I would appreciate pointers to materials that try to clarify this question. In any event, I will assume that FISA forbids whatever the NSA is doing.)

VP first argues that as a matter of statutory interpretation, the 2001 Authorization for Use of Military Force against the Taliban and Al Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001) ("AUMF") trumps FISA:

[A] Sept. 14, 2001, congressional resolution recognized the president's "authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." The resolution also empowered him to "use all necessary and appropriate force" against "nations, organizations or persons" that "he determines planned, authorized, or aided the September 11 attacks."

The first sentence doesn't help on the statutory argument, since merely "recognizing the president's authority" does not purport to change the balance between the executive and legislative branches' authorities struck in FISA. So the question is whether the AUMF's reference to "all necessary and appropriate force" amended FISA, if you will.

Many in Congress who voted for the AUMF say they never intended as much, and I have yet to see any legislative history or contemporary accounts suggesting that legislators actually contemplated what VP and others are now arguing. More to the point, then-Senator Daschle has said that the White House proposed a revision to the text of the AUMF that would have expressly referred to domestic powers:

Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens.

That this revision was not made suggests, again, that Congress did not understand itself to be limiting FISA in the way VP now suggests.

The heart of Virginia Patriot's argument -- both constitutional and statutory, if I'm reading him correctly -- is that electronic surveillance of the sort in which the NSA is engaged is at the heart of the sort of use of force envisioned by the AUMF and implicated by Article II. With regard to the AUMF and FISA, I think you can assume that this is true and still conclude that the AUMF did not alter FISA's scheme. (I'll return to the Article II perspective.) The problem for VP is that FISA specifically permits warrantless wartime domestic electronic surveillance, but only for the first fifteen days of a war. 50 U.S.C. § 1811. This provision gives the Executive Branch some latitude in the first days of a conflict, but only in those first days.

Since FISA's scheme explicitly addresses wartime intelligence-gathering, it's very hard for me to understand how Congress could be said to have amended FISA implicitly by granting the President wartime powers. Had Congress declared war on Afghanistan and Al Qaeda, it would be unreasonable to construe that declaration as altering FISA, and Virginia Patriot describes the AUMF as "having authorized war." The suggestion that intelligence-gathering is an integral part of warmaking only tends to confirm that the AUMF and FISA are complementary.

A slightly different way of putting this, in accord with a traditional principle of statutory construction, is that FISA specifically addresses wiretapping during wartime, and the AUMF does not. As better minds than I put it:

[The] 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.

Section I of this letter by several law professors has some additional arguments about how to construe the AUMF and FISA in conjunction with each other, but this seems to me the most compelling argument.

It seems to me that Virginia Patriot's heart is not truly in this statutory argument, since he devotes the better part of his piece to the more interesting and difficult constitutional question. If both arguments were close ones, the desire to avoid a difficult question of constitutional law might inform the statutory question, but I just don't think the question of how to construe the AUMF and FISA is that close. This post is long enough, so I'll turn to the constitutional issue in another post.