Flipping Youngstown: The DOJ Unveils its Legal Defense of NSA Spying

As the NYT reports, the U.S. Justice Department has released a memo defending the legality of the controversial NSA spying program. The NYT (of course) barely describes the memo and then devotes half of the article to quotes by legal experts who say it is unpersuasive. Dean Robert Reinstein speaks of a scholarly consensus that the NSA program is illegal.

Unbelievably, Marty Lederman of Balkinization has not weighed in yet (I spoke too soon, Marty is on the case here and Orin Kerr is on the case here), so let me rush to be the first to blog about the DOJ’s memo, which (contra the NYT and Dean Reinstein) I found to be quite persuasive and far from weak.

Here are the highlights:

(1) Youngstown

The memo invokes the Jackson concurrence in Youngstown, but “flips” the case in favor of the Executive. The President is not acting in Category III, the “lowest ebb,” where Congress has prohibited the action by the President. Rather, he is acting in “Category I”, or at the “zenith” of his powers because Congress has authorized him to “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.” Warrantless wiretapping of suspected Al Qaeda callers seems to fit this language, if broadly construed.

The memo then explains that this language ought to be broadly construed by because warrantless wiretapping in pursuit of foreign intelligence, especially in pursuit of foreign intelligence that might prevent a terrorist attack, is an inherent constitutional power allocated exclusively to the President. They even quote Justice Jackson (when he was a wartime Attorney General) in support of this authority.

(2) The Authorization for the Use of Military Force and Hamdi

Moreover, this analysis tracks the rule in Hamdi which teaches that the AUMF should be interpreted to authorize all actions by the President that are a “fundamental incident of the use of military force.” The memo cites all sorts of military authorities for the very plausible view that intercepting foreign enemy communications is one of those fundamental incidents.

(3) The Foreign Intelligence Surveillance Act

The biggest obstacle for the DOJ’s memo is FISA, the federal statute that prohibits domestic wiretapping without a warrant by a special intelligence court. Here, the memo digs up lots of legislative history that supports the limited scope of FISA. None is definitive, but some does hint that NSA wiretapping of international communications involving Americans was not within the statute’s reach. It relies heavily on the exception in FISA for wiretapping “authorized by statute” thus returning to its heavy reliance on the AUMF. It reads this language as allowing warrantless wiretapping without requiring a repeal or specific amendment of FISA.

Most importantly, though, the memo squarely takes on the FISA provision (section111) providing for a 15 day period of warrantless wiretapping following a declaration of war. It suggests that the legislative history does not support reading this provision as limiting warrantless wiretapping when there is no declaration of war. Indeed, the DOJ memo makes the argument I made here: that an AUMF might be broader, or at least, more specific in its authorization of wiretapping than a declaration of war. As the memo states:

As a historical matter, a formal declaration of war was no longer than a sentence, and thus Congress would not expect a declaration of war to outline the extent to which Congress authorized the President to engage in various incidents of waging war. Authorizations for the use of military force, by contrast, are typically more detailed and are made for the specific purpose of reciting the manner in which Congress has authorized the President to act. Thus, Congress could reasonably expect that an authorization for the use of military force would address the issue of wartime surveillance, while a declaration of war would not.

Indeed, Section 111 should give rise to the opposite inference. While a declaration of war allows only 15 days of wiretapping, Congress left out “authorization for the use of military force” resolutions on the assumption that those resultions would authorize more than 15 days of wiretapping.

All in all, the memo strikes me as a fairly persuasive response to the critics of the legality of the NSA program. The critics can rightly point to the pretty broad prohibitions in FISA while the President can rightly point to the pretty broad language in the AUMF.

I guess for me, the question boils down to whether warrantless wiretapping of foreign-domestic phone calls is a plausible “fundamental incident of war powers.” Historically, I’m not so sure. But in this war, where the primary goal of the enemy is to launch a terrorist attack inside the U.S., it seems far more likely.

The memo makes (to me) a persuasive analogy between foreign-domestic wiretapping and the President’s power to respond to a foreign-domestic attack in the United States without congressional authorization. If, for instance, the President can order an attack on a hijacked American airliner carrying Americans but arriving from a foreign country (which he undoubtedly can), then it seems that he should also be able to wiretap foreigners calling Americans who might be planning to hijack an airliner.

No matter where I come down in the end, I think it is far too early for experts like Dean Reinstein of Temple to declare that this is a “pretty straightforward case” of the President acting illegally. The DOJ memo is not perfect, but it makes a very strong case that this is a hard rather than an easy case.