Positive Liberty

I don’t have time to enter into a serious legal analysis of the FISA/wiretapping issue. But I did see that the Volokh Conspiracy pointed to this discussion of the legality of warrantless wiretapping under FISA. Robert Levy, an unusually good libertarian legal thinker, points out something that I’ve not seen mentioned anywhere else: FISA has a provision that covers war-time wiretapping:

Second, in FISA, §1811, Congress expressly contemplated warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared. The statute reads: “Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.”

I had not known that. This strikes me as a very significant blow to the President’s argument. I do believe that the September 18, 2001 Joint Resolution by Congress (sometimes called the Authorization for the Use of Military Force) is a Declaration of War. But this section of FISA makes clear that even if this is so, the President’s authority to conduct the war is limited in this aspect. So then the question becomes, is FISA an unconstitutional limit on the President’s war power? I think the answer to that must be no. Congress has the authority to limit the President’s exercise of power on the domestic front, and particularly in constitutionally sensitive matters. Although I’m a believer in a very powerful inchoate Presidential wartime authority, that authority is obviously weakened when the Congress has placed an explicit limit on the President’s domestic authority.

Assuming that FISA is valid, does the President have some other source of authority to wiretap? The standard reference for discussion of the President’s inchoate authority is, of course, Justice Jackson’s famous opinion in the Steel Seizure Case, 343 U.S. 579 (1952). Jackson—who was wartime Attorney General for President Roosevelt—set out three “somewhat over-simplified group[s]…of practical situations in which a President may doubt, or others may challenge, his powers.” Id. at 635. There are three general groups of Presidential actions, Jackson explained: First, “When the President acts pursuant to an express or implied authorization of Congress,” at which time, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id. Second, when the Congress has neither granted nor denied authority, in which cases the President “can only rely upon his own independent powers.” Id. at 636. In these cases, there’s a “zone of twilight,” in which the President may be entitled to act, depending on the circumstances. Jackson offered as an example President Lincoln’s suspension of habeas corpus. Id. at 636 n. 3. And then, third,

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibruim established by our constitutional system.

Id. at 635-38. Of course, Jackson doesn’t say what sorts of limits on the President Congress is entitled to make, but look at the Steel Seizure Case in general. There, President Truman attempted to seize some steel factories, the employees of which had threatened strike, so as to prosecute the Korean War. The Congress had not authorized the action directly. It had, however, passed legislation which allowed the President to seize property for war purposes under certain conditions, but “the Government admits that these conditions were not met and that the President’s order was not rooted in either of the statutes. The Government refers to the seizure provisions of one of these statutes…as ‘much too cumbersome, involved, and time-consuming for the crisis which was at hand.’” Id. at 586. But the Court ruled, 6-3, that:

The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces…. Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad…. The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President…. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can makes laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution did not subject this law-making power of Congress to presidential or military supervision or control.

Id. at 587-88.

Some caveats: I am not an expert on the Fourth Amendment or on FISA; I have not read FISA; I cannot speak with confidence on its constitutionality, and I usually presume in favor of the President on such issues. But I think the Steel Seizure Case is very closely analogous to this situation, and, assuming FISA is valid—which it probably is—then the President’s wiretapping clearly exceeds section 1811, and is not warranted by any other source of authority.

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