Thursday, December 29, 2005

FISA is pretty clear, actually.

Why do people want to see Cass Sunstein as a defender of the President? Jason Zengerle (it's his day here, I guess) writes: "Cass Sunstein, as honest a broker as you're likely to find among law professors, thinks that Bush may well have been within his legal rights."

As a statutory matter, not exactly. Follow the link, and you'll see that Sunstein has posted "an exceedingly tentative analysis, with the purposes of disaggregating the issues and of suggesting that there are several unresolved questions here." Specifically on the question of whether the President's actions violated FISA, he says:

On (3), the question is how to square the AUMF with FISI. It isn't unreasonable to say that the more specific statute, FISA, trumps the more general, so that the wiretapping issue is effectively governed by FISI. But if surveillance is taken to be an ordinary incident of war, and if the President has a plausible claim to inherent authority, this argument is substantially weakened. Note that the President isn't forbidden, by the precedents, from arguing that FISI is unconstitututional insofar as it forbids him from engaging in the relevant activity (item (4) in my catalogue). I am not sure how strong this argument is; if it is pretty strong, there is good reason to read the AUMF to allow the President to wiretap, and not to read FISI so as to forbid wiretapping, simply to avoid the hard constitutional question.
With respect to Sunstein, I think he has aggregated his disaggregated issues here. As he suggests, it appears that what the President has done violates the plain language of FISA, and that as a matter of statutory construction the specific language in FISA speaks more clearly than the (much more general) authorization for the use of military force (the "AUMF").

I can see why Sunstein, as a constitutional scholar, would be interested in the separation-of-powers issues here, moreso than the questions of statutory interpretation. A Youngstown Steel doesn't come along that often. But the question of FISA's application just isn't that hard.

To quarrel with Sunstein for a moment, it's not like the President was "arguing that FISI is unconstitututional." He kept quiet about it for four years. If he thought that there was a constitutional problem, let's just say there were ways to address the situation that would have shown a little more respect for the rule of law.

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