Geogetown Law School Prof. Neal Katyal and Richard Caplan (Class of 2007) have an article titled, “The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent” from the forthcoming issue of the Stanford Law Review available for download as an Adobe Acrobat file. According to the abstract:
This Article explains why the legal case for the recently disclosed National Security Agency surveillance program turns out to be stronger than what the Administration has advanced. In defending its action, the Administration overlooked the details surrounding one of the most important periods of presidentially imposed surveillance in wartimeâ€â€President Franklin Delano Roosevelt’s wiretapping and his secret end-run around both the wiretapping prohibition enacted by Congress and decisions of the United States Supreme Court. As explored through primary source material, President Roosevelt acted against the interpretations of, among others, his Attorney General and the Supreme Court regarding a law passed by Congress, deciding, in secret, that wiretapping was essentially his prerogative. That Attorney General, Robert Jackson, later remarked that it was “[t]he only case that I recall in which [FDR] declined to abide by a decision of the Supreme Court.â€Â
The FDR precedent provides some justification for what is known about President Bush’s wiretapping program – more, it would seem, than what has been put forward by the Administration itself. By outlining some of the general conditions under which Executive Branch precedent may justify contemporary national security decisions, we develop a framework for Executive Branch stare decisis and ultimately conclude that the FDR precedent should not be followed today. We recognize, however, that our conclusion is debatable, and believe that the FDR precedent deserves widespread debate, instead of the inattention it has received thus far. We further explain why the past history and present experience with wiretapping reveals the relative frailty of both courts and Congress in national security disputes, and highlights the need to lace the concept of “separation of powers†into the Executive Branch.
The authors fail to explore some of the reasons why their conclusion is debatable, including the view of the Foreign Surveillance Intelligence Court of Review on the president’s authority, and the knowledge and acquiescence of the House and Senate majority and minority leaders and the co-chairs of the Intelligence Committees in the current program’s operation. Nevertheless, it is both a fascinating look at the historical precedent for the terrorist surveillance program and more moderate in its tone than most of the opposition for having taken the time to examine that history.
I think FDR is man of the 20th century. His influence and legacy, while talked about at length all the time, still seem to be underestimated.
I believe that there is even more that justifiies the NTP in the Supreme Court history(1960s) if one can translate the past to cyberspace. What would be a “Terry Stop” in cyberspace? Would not a known foriegn terrorist calling someone in the US be enough to conduct a “Terry Stop” on the person in the US?
WBB,
The analogy would not be to a Terry stop so much as the border exception to the Fourth Amendment.
Karl, my understanding of the “border exception” allows the US official to investagate the foreigner not a/the US person. In cyberspace the known foreign terrorist inters the US(via cyberspace or the communications of and in the US) and contacts the US person. Truth is our laws of the past do not always “fit” in cyberspace. But, this is a case where the activities of the US person is (in my view) suspicious, by virtue of foreign terrorist associations.
Hey, Karl, this is off-topic, but have you seen this?
http://www.marketwatch.com/news/story/ex-qwest-ceo-nacchio-gets-new/story.aspx?guid=%7BD4010478-5515-4EF0-940D-EF79C98185E1%7D
How would you feel about warrantless wiretapping pre-9/11?
How would feel about the Federal government possibly (huge possibly) lying to us about telecom immunity, i.e. “patriotic companies gave us access in the dark days after 9/11” is now “we asked them a month into the president’s term”?
It’s always been about the immunity for George and the gang and we may now see why.
Then again, I’d might rather have that lying Newsmax reporter on my side (I saw Obama at that church….ooops, he wasn’t there) than Nacchio. He’s the epitome of greedy silliness.
Still, the story adds a fine new shred of gray the flag-waving bs that accounts for analysis about telecom immunity on the Right.
How would you feel about warrantless wiretapping pre-9/11?
Well that would be outrageous! Obviously there was no terrorist threat before 9/11!
WBB,
Your understanding of the border exception is mistaken. Go read the links at the link already provided. Or just watch Amercians getting stopped at customs coming back from abroad.
IJS,
I think B Moe might be onto something there. We did have to go through a whole hand-wrining, “Why didn’t Bush connect the dots?” whinge from the Left after 9/11.
And you wouldn’t be a troll if you could stay on-topic, so it’s not like you need to admit it upfront. We already know. That being said, I think if I was a convicted fraud like Naccio, I might think that saying this sort of thing might get me a little sympathy from the BDS crowd.
Interestingly, you’ll note, if you followed the link, that Nacchio is NOT a convicted felon as of today. He is just an accused felon!
Hate to also be labeled a troll, but that just had to be addressed.
Where is the line between when the President is supposed to follow a law? Presidents apparently don’t have to follow the law if there is possible terrorism (a word Georgie rarely spoke of, Ashcroft ignored, and Condi “I’m due to give a missile defense speech on 9/10” Rice wasn’t exactly interested in).
Wow! The contortions Republicans will do to stay on the party line!
Yeah, FDR did a lot of things. Unconstitutional and authoritative things, most of whom were not even related to wartime, like trying to destroy the Supreme Court. He is the man most responsible for the fact that we are no longer a constitutional republic, but simply go through the emotions while we bend the constitution to whatever we want it to say.
I’d tell Conservatives to be careful about using him as a precedent for anything.
simply go through the emotions
* the motions
WTF does the Nacchio have to do with lawful surveillance of foreign nationals?
Here’s another, perhaps more recent and closely related link that addresses the question of border search authority.
You already see why, nutbag. It’s all laid out in the pictures in your head, narrated by the voices in your head. Now, what on earth does the Nacchio case have to do with any of this? Just that Telcos are evil and you hate them? Well, stop using them and sign the fuck off already.
“Where is the line between when the President is supposed to follow a law?”
You mistake the reality of the case. The President is granted powers in two specific cases, but the limits of those powers are not spelled out, in the Constitution.
The executive Power shall be vested in a President of the United States of America.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States
When actin under this direct Constitutional authority, it’s not a matter of “supposed to follow a law” as statutory law is subordinate to the Constitution. Precedent, tradition, and specifically crafted legislation have delineated what these clauses specifically pertain to and what limtis exist.
Justice Jackson lays it all out the best and most clearly in his Youngstown decision with a three part test for the proper exercise of Presidential authority.
Pablo,
That is one of the examples given at my link as well.
No. 10
I’ll second those
Youngstown, of course, shows how extremely stupid Presidential Authority
can get. Truman tried to draft the strikers during war time; can you imagine what the Kos,Huff Po, et al would do if one even suggested that as
an option.
A confusion is being created by people not looking at the Fourth Amendment as it relates to border searches. Instead of AT&T make it UPS; instead of a phone call or an e-mail, make it a package or letter. Does the US Government have the authority to search a letter carried across the border? If so, does it have the authority to inspect an electronic communication across the border?
That should be the proper analysis. Does the form of the communication change the authority of the US Government to inspect at the border? If no, why not?
Makes perfect sense to me, MikeyNTH, but remember you are talking to people who want to compensate me for having my rights violated by having me pay off some class-action lawyers.
“but the limits of those powers are not spelled out, in the Constitution.”
Some are. like the bill of rights.
Oh joy, another illiterate troll.
[…] The FDR Precedent for the Legality of the NSA Surveillance Program [Karl] […]
“Some are. like the bill of rights.”
Yes. And if you’ll read the precedents, you’ll find that there are exceptions there as well sometimes. The 4th Amendment in particular is one of those.
Are you being unreasonable, RTO?
mdavid seems to think I may be.
All, the problem in Cyberspace is that all of the examples being cited do not fit. Since the US has become a major hub in Cyberspace, a foreigner can communicate with another foreigner in two different countries(neither being the US) and their communications could(and most probably will) come through the US. Should those communications be protected? Are we protecting the facilities or the communications? The 4th amendment protects the rights of US persons (not just citizens); where does it protect the “rights of facilities” in the US. So, if a foreigner uses US facilities(ie communications)is he protected? If a foreigner physically comes into the US as a visitor, he is protected, because he becomes a US person by definition. An american owned airline in Africa is by definition, a US person and is protected by the 4th amendment. And so are US facilities in the US or anywhere in the world. Also, all this talk of warrantless wiretapping avoids the issue of wireless “tapping”. In most instances computers, not humans, are deciding the route and mode of communications between humans. What would you do if you were in the President’s situation after 9/11; you want to know who in the US is capable of or planning the next 9/11 and you know they are foreign supported etc..What would you have done within the “laws” you are citing to protect this country? I would contend that Cyberspace is a new frontier, that requires whole different approach and interpertions of our “laws” as written. I believe the President did the right thing! The powers of his office was all he had to turn to. Remember how this was called “domestic surveillance” by the NY Times and then Congress looked into “it” (something many already knew about) and suddenlly it became a FISA issue. FISA equals Foreign not domestic! If a human (US person) was givien a letter by a foreign terrorist to deliver to a US person in the US, and that person decides to give it to the FBI instead, should that US person go to jail or be sued because he was “patriotic”?
Ah, RTO has returned with his view of Article 2 as the President becomes King during wartime. I have to think it’s good in you are in the Armed Forces, RTO, because you are just ready to grant authority whatever it deems necessary.
People like me and Sandra Day O’Connor (oh, hell, the entire Supreme Court if you throw in Hamdan) believe that we still have a divided Republic during wartime (leaving aside your acceptance of Bush’s concept of a “war without end”). In fact, as Sandy wrote not that long ago: state of war is not a blank check for the President.”
But, in the remaining few days months of the Bush administration, maybe you become AG or get appointed to the Court. Considering your understanding of the Constitution is akin to George III, maybe we can just re-do all of American history?
Having this “discussion” with most of you is like talking to David Addington’s id or John Yoo’s dark side. Especially, since you have yet to note that the Congress GAVE the President the increased authority he wanted, but he has threatened to veto anything that does not contain immunity. Repeated for the slower thinkers, the House bill allows the President to skirt around the recent ruling of the FISA Court. The President’s problem with it is that it does not contain telecom immunity.
As for B Moe, as I directed Darleen, check out EFF’s website or the ACLU website. They have direct links to the documents filed in the case named (hold on to your right wing hat) “EFF v AT&T”. EFF is a non-profit organization, as is the ACLU. There are no “class action” attorneys who benefit from this suit. The damage requests are necessary to get into Federal Court and are attempts by the organizations to get to the bottom of when and where the Executive got the idea that the law did not apply (I know, RTO, they got the idea when George pulled that sword out the rock and was anointed King).
As the sweet old Mike McConnell pointed out on NPR. Immunity is the primary requirement of this legislation.
IJS,
Once more please, this time with substance, skip the feelings. I mean I’m happy to debate, but you’ll have to actually talk about the issue at hand rather than those you disagree with.
People like me and Sandra Day O’Connor (oh, hell, the entire Supreme Court if you throw in Hamdan) believe that we still have a divided Republic during wartime (leaving aside your acceptance of Bush’s concept of a “war without endâ€Â). In fact, as Sandy wrote not that long ago: “a state of war is not a blank check for the President.â€Â
SUE THE TELECOMS INTO SUBMISSION TO THE LEFT WING OVERLORDS AND PLAINTIFF ATTORNEYS !!!!!!!!!!!!!!!!!!!!
“a state of war is not a blank check for the President.â€Â
No one is suggesting it is. You really ought to read Youngstown.
Let me ask though, do you agree that where the 1st ammendment says “Congress shall make no laws” or the 2nd ammendment says “shall not be abridged”, don’t really mean those things? And if there can be exceptions to those seemingly clear statements, then why do you have a problem with exceptions where there are no such prohibitions?