I really enjoyed your terrific blog post, here, on @just_security. You argue the NSA lawyers failed in all ethical obligations by taking such an aggressive position that their various programs are lawful. I think you are a little tough - surely government lawyers can take aggressive positions that favor their client -- but I take your point to be that their arguments were so beyond the pale that they were out of bounds. I'd love to hear more from experts on government lawyers and their ethical responsibilities.
But I'll tell you who I think was really asleep at the switch: the FISA court judges. If government lawyers are going to be aggressive, especially when there is no representation on the other side, then the judges have to do a serious job of evaluating government arguments. I have many times in my head written the opinion I wish the FISA judges had written, pointing out that what was being asked was a gigantic leap from the past and from what Congress reasonably could have intended. In a sense those judges should have remanded the issue to Congress to grant such broad authorization if it intended to. Only then should we even have confronted constitutional questions.
Hi Barry. So you're right that government lawyers, like lawyers generally, are expected zealously to represent their client. But I think the meaning of "zealous" is a bit different for government lawyers -- especially federal government lawyers. Unlike lawyers serving private clients, who are charged with protecting (within the law and lawyers' ethical obligations) their clients' solely private interests, lawyers serving government have an obligation to balance a couple of important considerations. There is the government's immediate interest in winning a case in which it's involved, or in pursuing the policy it wants to pursue. But just as important is the government's long-term interest in stability, legality, and a culture of respect for law.
I spent three years as a lawyer at the Department of Justice, working at the Antitrust Division. And this was in a period that featured some very important antitrust cases -- including U.S. v. Microsoft. Our ethic at the Antitrust Division was not "we'll interpret the law in whatever wacky and implausible way allows us to beat up on Microsoft." The antitrust claims that were advanced -- and that prevailed -- in that case were really pretty orthodox. Unlike, say, the startling new understanding of the concept of "relevance", apparently accepted by NSA lawyers, which takes several hundred years of Anglo-American law and legal culture, balls it up, and throws it in the trash.
And yes, the FISA court is awful. (Jennifer Granick and I explain why here: http://www.forbes.com/sites/jennifergranick/2013/08/28/fisa-court-rolls-over-plays-dead/ and here: http://www.thedailybeast.com/articles/2013/07/24/the-secret-fisa-court-must-go.html)
If anyone doubts that, they should look at the recently-declassified 2011 FISA court opinion. The opinion finds that the government misled the FISA court for over three years about the details of its surveillance programs. In particular, the government hid from the court the fact that every year the NSA is collecting at least tens of thousands (and possibly far more) communications that are solely between Americans -- a category of communications that the NSA is forbidden by law to collect. That's bad, but the worst part of it is, when the government's misrepresentations were finally exposed, the FISA court demanded . . . not that the NSA stop collecting the forbidden communications, but that NSA analysts read them faster and then delete them if they contain no relevant evidence. In other words, the government wasn't punished for breaking the law, or even for misleading the court. They received not even a slap on the wrist, but a pat on the back. And this is the court we're supposed to rely on to restrain the NSA?
In any event, here's the question that's been on my mind: The Administration, the Congress, the courts, the government lawyers -- they have all failed us. So what on earth are we supposed to do now?
Before answering the money question - and as a prelude to it - I want to acknowledge something you say, and reframe it. You and others have pointed to all the instances in which the NSA seems to have gone beyond the bounds of what the FISA court allowed; occasionally FISA court judges seemed annoyed, and remedial measures were taken. But what strikes me about all this is that it is the inevitable consequence of a regulatory scheme that bears no relationship to a traditional "government-seeks-warrant" situation. Even though it pretends to be this. Warrants are sought typically on cause to believe someone or someones have done something wrong and - as the Constitution says - they "particularly describe" what is being sought and where. This FISA scheme is a Rube Goldbergesque contraption that is called a warrant but is really a dragnet.
My answer to what to do about it rests in the notion that judges find it difficult to tell the government it cannot do something when national security is at stake. But what judges need to learn is that they don't have to put the kibosh on these programs alone. They just have to pass the hot potato to the branch that deserves to hold it: Congress. What the FISA Court should have done is simply said, "Look, this may or may not be okay, but we need authorization for it from Congress." I completely agree with you that the argument such authorization existed is makeweight. Even its defenders can't manage to say much more than it is "plausible" or "it was not implausible." Pretty weak for such a HUGE dragnet of citizens' private information.
What we need are default rules that courts deny policing agencies permission unless there is clear democratic authorization. That forces the questions about policing back in the hands in which they belong - our own!
This is one of the chief themes of the book I'm writing about the Constitution and policing: that unlike every other executive agency, bound by the rule of law through things like "clear statement" rules and notice and comment rulemaking, the police seem to operate in their own uncontrolled space. Given that these checks exist to protect liberty, and that the executive agencies most threatening to liberty are the police, this disjuncture is just weird.
At the risk of sounding like Molly Bloom, let me say the following: Yes yes yes yes yes. And especially to this: "What we need are default rules that courts deny policing agencies permission unless there is clear democratic authorization. That forces the questions about policing back in the hands in which they belong - our own!"
This fits with what I think we need in the national security field generally -- less law, and more politics. And that means that judges must be willing to pass the baton back to Congress when the law does not clearly authorize some form of government action that imposes on personal liberty.
Now, there are two things that we need to work out in order to realize the re-democratization of national security policy (and a lot of other policy besides).
First, the culture of judging needs to change. Judges need to learn better how to say "the law doesn't answer this question." And, also, "the Constitution doesn't answer this question." And in both instances, to ask for specific guidance from the legislature.
A while ago I wrote a short piece in Slate making a similar argument in the context of Obamacare. Here: http://www.slate.com/articles/news_and_politics/jurisprudence/2011/02/first_do_no_harm.html
In the article, I argued that our old, terse, and increasingly anachronistic Constitution does not provide an answer to the question whether forcing people to purchase health insurance is within the power of Congress to regulate interstate commerce. The Framers could not conceive of such a transaction. And there's no interpretive theory that gives us a reliable fix on whether they meant to permit or ban forced purchases. In that context, I argued, judges should butt out. In particular, they should admit that the Constitution has nothing to say, and defer to Congress's clear statement.
The situation with the NSA is a bit different. There is no clear statement authorizing the conduct. I understand that some people have argued that the Administration's interpretation of its authority under the Patriot Act and the FISA Amendments Act is "plausible" or "not implausible" -- two formulations which I read as polite ways of saying that the Administration's legal interpretations are pretty weak but maybe just shy of totally ridiculous.
I'm willing to go all the way, and say that in the long arc of history, we'll all be chuckling (darkly) at the Administration's reading of the statutory text. In fact, we don't need to wait -- we're entitled to laugh right now. But your point is correct either way, and the culture of judging needs to absorb it. We need judges to be more willing to admit when the law doesn't clearly answer a question. And then, when -- as here -- there are pressing democratic interests in having the question answered via politics rather than law, we want judges to get out of the way and let that happen.
The second thing we need for your idea to be realized is a Congress that takes its responsibilities a bit more seriously. I spent quite a few hours over the last months watching and listening to Dianne Feinstein and Mike Rogers, the Chair and Ranking Member, respectively, of the Senate Intel Committee, hold "oversight" hearings which consisted mostly of witnesses who believe, as Feinstein and Rogers do, that whatever the NSA does is fine. I don't think anyone could say that either Feinstein or Rogers has engaged seriously on this issue of the legality of either the Section 215 metadata program, or PRISM.
We need better politicians. On that, I have no ideas.
Hi Chris. I'm sorry I'm late responding, I've been at a conference at Stanford on history and constitutional interpretation.
On your question about politicians more in a bit - or maybe we can drag in someone more expert.
I just want to comment on your constitutional interpretation notions. I don't disagree necessarily but I want to suggest the tools exist in constitutional law to get where you want to go. Judges often when confronted with a situation like the FISA court faced, will either (a) interpret the statute to avoid constitutional questions, or (b) apply a clear statement rule, saying "this treads so close to a constitutional line, that we don't want to assume Congress meant to do it without a clearer statement in the law."
Both of these devices forestall a constitutional ruling while, like replyall.me, inviting another player - in this case Congress - into the conversation.
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