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One thing I’ve learned in more than 20 years in the civil litigation business is that if it takes 30 pages of briefing and a stack of documents three feet high to explain why there’s no genuine issue of material fact, you’re probably going to lose the summary judgment motion. Most judges can’t help but think there’s a controverted fact or two floating around in such a mass. Reading the 42-page memo titled “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” which the Justice Department issued on Jan. 19, sparks a similar conclusion. The memo is intended to demonstrate the clear and explicit constitutional authority of the president to conduct electronic surveillance without a warrant in the interests of national security. With at least nine arguments and dozens of subarguments, the memo is a tour de force of legal argumentation elevating the authority of the president over that of Congress and the courts. No doubt, the Justice Department put its best and most creative lawyers on the task. The memo cites sources all the way from the Federalist Papers to the Declaration of War on Spain in 1898 to quotations attributed to Chief Justice John Marshall concerning the intelligence-gathering prowess of Gen. George Washington (apparently found in the U.S. Army Basic Field Manual, circa 1938). In the end, though, by piling argument upon argument, the memo gives the unmistakable impression — like that towering summary judgment motion — that maybe the president’s authority isn’t so clear after all. THE PRESIDENT’S CASE I’ll admit that I approached the memo with a degree of skepticism. I had a nearly personal brush with this type of argumentation when I learned that the draft “Report on Interrogation Methods by the Pentagon Working Group,” the so-called torture memo leaked in 2004, mentioned an appellate decision from a case I had tried. I thought the case was a dispute over construction of an apartment complex. The torture memo cited it as part of the justification for why certain acts of brutality did not fit the definition of torture under federal law. Ultimately, I think I was right to be skeptical about this new memo too.
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Most basically, the Jan. 19 memo contends that the president has a well-recognized, inherent power as commander in chief to conduct warrantless surveillance of enemy forces. Moreover, the memo says, the Authorization for Use of Military Force, hurriedly passed by Congress on Sept. 18, 2001, “confirmed and supplemented” that authority. Complications, however, are found in the Foreign Intelligence Surveillance Act of 1978, and nearly half of the memo is given over to arguments relating to FISA. Those arguments run the gamut from contending that warrantless wiretapping by the National Security Agency is consistent with FISA to claiming that FISA is unconstitutional to the extent it can be read to limit the president’s authority. Finally, the memo argues that warrantless wiretapping is consistent with the Fourth Amendment. Notably, the title of the memo refers to the NSA’s activities “described by the president.” Those activities, the memo makes clear at many points, cannot actually be described for fear of “compromising national security.” It might be true that the details of the NSA’s activities should not be given to you or me. But if the memo’s reasoning is carried to its logical conclusion, neither Congress nor any court will ever have the opportunity to properly consider whether what the NSA is doing is justified. REMEMBER 9/11 As might be expected, the memo begins with a recital of the familiar facts surrounding the terror of 9/11. The clear intent is to remind the reader of the horror of that day and to soften him up for the barrage of arguments to come. In other words, why should we dig too deep for the sense of some legal reasoning when, after all, it’s part of the effort to find the monsters who would fly commercial airliners into buildings and launch similar horrific attacks? The fact is that you’ll always find someone at the top of the slippery slope saying something like, “If only we’d been wiretapping Mohamed Atta,” or “You don’t have anything to fear unless you’re al Qaeda.” But legal arguments must stand on their own, outside today’s narrow context. Yet, over and over in the memo, the enormity of the attacks is used to leap over gaps in the reasoning. For example, in arguing that the NSA wiretapping fits into the “special needs” exception to the Fourth Amendment’s warrant requirement, we’re repeatedly reminded that the government’s interest “is the most compelling interest possible” — namely, “securing the Nation from foreign attack in the midst of an armed conflict.” The implication is that such statements necessarily trump all contrary considerations, which are never really considered in any event. THE GERMANS DID IT Also unsatisfying is the memo’s strangely indiscriminate marshaling of the historical evidence. The memo insists that all of our greatest presidents — from George Washington (“a master of military espionage”) to Abraham Lincoln to Franklin D. Roosevelt — engaged in activities indistinguishable from today’s warrantless wiretapping. Gen. Washington’s activities, of course, occurred before the Constitution was ratified (or communications by wire, for that matter). Equally odd are the memo’s citations to such historical authority as the wiretapping activities of the Secret Service of the High Command of the German Army during World War I or the fact that Confederate Gen. J.E.B. Stuart “had his own personal wiretapper.” It’s far from clear how acts of a wartime foe, much less of an army in rebellion against the United States (and its Constitution), buttress arguments in favor of anything being constitutional. Similarly, the historical precedent of the 1916 American expeditionary force chasing Pancho Villa around northern Mexico is of dubious constitutional significance. Perhaps the most telling aspect of the memo’s historical approach is the big hole in its timeline. The historical evidence largely skips from World War II to Sept. 11, 2001. Completely absent from the memo is any appreciation of the wiretap-happy administrations of the 1950s, 1960s, and 1970s that led Congress to pass FISA in the first place. Another unusual aspect of the memo is its willingness to present types of legal arguments not usually favored by the current administration. That the memo cites to foreign law, for instance (in the form of Blackstone on the issue of one parliament’s authority to bind a subsequent one), is evidence of an administration pulling out all the stops in defending presidential authority. WHAT CONGRESS MEANT Even more troubling is the memo’s ability to repeatedly find implicit authority for the president in otherwise silent constitutional and congressional pronouncements. For example, the Authorization for Use of Military Force doesn’t say a word about wiretapping. It does say that the president “is authorized to use all necessary and appropriate force” against anyone involved in the 9/11 attacks to prevent future acts of terrorism, and that, says the Justice Department, is enough to indicate Congress’ clear intent to permit the questioned surveillance activities. The memo draws conclusions about what “Congress evidently thought,” and states that “the absence of any specific reference to signals intelligence activities in the resolution is immaterial.” Moreover, in arguing that the Authorization for Use of Military Force constitutes an amendment to FISA, the Jan. 19 memo first has to bend that one-page joint resolution — passed by an evacuated Congress “meeting in scattered locations” a bare week after 9/11 — into a “statute” capable of amending FISA. The memo finds further support in Congress’ failure, at least to date, to express disapproval of what it calls the administration’s common-sense and plain-meaning interpretation of the joint resolution. The memo doesn’t mention the fact that the members of Congress — apart from a handful of Intelligence Committee members — only learned about the NSA activities when The New York Times revealed them in December. A particularly difficult aspect of this FISA argument is the fact that FISA already provides for electronic surveillance to be conducted without court authorization for 15 days after a declaration of war. According to the conference report that accompanied FISA’s passage in 1978, that 15-day period was intended to give Congress time to consider amendments that might be appropriate in a wartime emergency. Now the Justice Department seeks to argue that, instead of explicitly amending FISA, Congress chose to implicitly change the law through the Authorization for Use of Military Force. (The fact that Congress did work some explicit comprehensive changes in surveillance laws into the USA Patriot Act is the subject of a complicated exegesis in the memo’s footnotes.) The overriding impression of these 42 pages of arguments describing the president’s “well-recognized inherent constitutional authority” is that anything that can’t be fully explained in, say, 10 pages maybe isn’t so clear after all. At one point, the memo derides the very idea that Congress right after 9/11 should have legislated “at a level of detail more in keeping with a peacetime budget reconciliation bill.” Fair enough. And the different kind of threat posed by terrorist organizations like al Qaeda may well call for a different approach to electronic surveillance. But now, nearly 4 1/2 years after the terrorist attacks, the Justice Department’s contortions show, at a minimum, the need for a real debate, both in Congress and in the public at large, on a subject of critical constitutional significance.

Press Millen is a partner in the Raleigh, N.C., office of Womble Carlyle Sandridge & Rice.

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