Sunstein Wildly Wrong on Warrantless Wiretaps; Kerr Clarifies: No Monarchy
Tue Dec 27, 2005 at 08:22:59 AM PDT
I have been
incredibly hard on University of Chicago Law Professor Cass Sunstein, and with good reason. His performance on Hugh Hewitt's radio show was horrible:
HH: Do you consider the quality of the media coverage here to be good, bad, or in between?
CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is.
Forget how wrong Sunstein is on the law, which I detailed in my linked post (and it is not just that Sunstein is wrong, it is that he virtually ignores the central issue here - the Congressional prohibition against that which the President has done and is doing). Look at how he smears and distorts those who disagree with him as being in "a libertarian panic." Look at how he misstates the President's claim of power - labelling it "fairly modest" when in fact it is sweeping. Indeed, it is the very claim of power rejected by the Supreme Court in Youngstown and Hamdi.
Professor Orin Kerr, who I wrote about previously, understands this and clarifies a muddled point:
I read Daily Kos only occasionally, so I just came across the post "A Little Bit of Monarchy" by Armando on the NSA surveillance program that includes some criticism of my long post last week. Armando's post is a week old, but the Daily Kos gets a jazillion readers, so I thought I would respond and explain Armando's misunderstanding. (Plus, I believe Charles Krauthammer may have had the same misunderstanding, so maybe it's a widespread misconception.)
. . . In my post, I argued that the monitoring probably didn't violate the Constitution (and in particular, the Fourth Amendment), but that it probably did violate FISA. This doesn't mean that the monitoring was legal; it only means that of the two possible grounds that it could be illegal, I think it was probably illegal on one ground but not the other ground.
The distinction is a little tricky in this context because some are arguing that Article II renders FISA unconstitutional in some ways. But when I said that the monitoring was probably constitutional, I only meant that the monitoring probably didn't violate the Fourth Amendment; I didn't mean that the Constitution invalidates a statute that makes the monitoring illegal. As Armando notes, I rejected that argument. . . .
Kerr understands what the issues are. Sunstein does not apparently. I'll discuss more Sunstein misunderstandings below the fold.
It appears that Sunstein is quite dismissive of Congressional power on matters military. In early 2002, a
debate was raging about the President's power to stablish military tribunals for the prosecution of the perpetrators of the 9/11 terrorist attacks. This is what Sunstein wrote on the issue:
Under existing law, President George W. Bush has the legal authority to use military commissions to try certain suspected terrorists for violations of the law of war. In arguing otherwise, George P. Fletcher makes numerous blunders ["War and the Constitution," January 1-14, 2002]. The key decision is Ex parte Quirin (1942), in which the Supreme Court upheld President Roosevelt's decision to use military commissions to try German saboteurs who had landed on Long Island. The Court concluded that Congress had authorized use of commissions to try violations of the law of war. The Court held that the saboteurs had violated that law, and hence were "unlawful combatants," because they entered the country secretly, without uniform, and with the intent to destroy property. The Court emphasized that unlawful combatants could be treated differently from ordinary soldiers operating in uniform pursuant to an ordinary chain of command.
. . . After these cases, President Bush's choice stands on firm legal ground insofar as he seeks to use military commissions to try people who planned and participated in the September 11 attacks (and similar actions). The congressional authorization found sufficient in Quirin is the same law invoked in Bush's order. In rejecting this conclusion, Fletcher misdescribes the law.
Compare that to Professor Laurence Tribe's statement:
George P. Fletcher attacks a phantom of his own making when he accuses me of wrongly defending the president's order directing the use of military tribunals to prosecute suspected terrorists. That's a peculiar accusation, given the unambiguous conclusion of my Senate testimony that the order is unconstitutional on its face for a wide variety of reasons. Professor Fletcher offers no dissent to my view that "such tribunals may [nonetheless] be justifiable in extremely limited circumstances in which, among other things, the laws of war have been violated." Nor, despite his dismay at my "preaching congressional approval," does he rebut my testimony that some of the "constitutional infirmities that plague the military order" could indeed be remedied by Congress -- principally by specifying the prosecutable offenses legislatively, as the Supreme Court has held mandatory ever since United States v. Hudson and Goodwin (1812); by guaranteeing that convictions may be appealed to a body independent of the executive, as only Congress can possibly do; and by strictly limiting the tribunals' jurisdiction. Fletcher's supposition that it "never occurred" to me that Congress, too, must abide by the Constitution surely was meant in jest.
Sunstein's problem? It's obvious is it not? In the current dispute on warrantless domestic surveillance, he utterly ignores FISA's prohibition on the actions taken by the President. The Quirin Court ruled that:
Congress and the President, like the courts, possess no power not derived from the Constitution. But one of the objects of the Constitution, as declared by its preamble, is to 'provide for the common defence'. As a means to that end the Constitution gives to Congress the power to 'provide for the common Defence', Art. I, 8, cl. 1; 'To raise and support Armies', 'To provide and maintain a Navy', Art. I, 8, cls. 12, 13; and 'To make Rules for the Government and Regulation of the land and naval Forces', Art. I, 8, cl. 14. Congress is given authority 'To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water', Art. I, 8, cl. 11; and 'To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations', Art. I, 8, cl. 10. And finally the Constitution authorizes Congress 'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' Art. I, 8, cl. 18.
The Constitution confers on the President the 'executive Power', Art II, 1, cl. 1, and imposes on him the duty to 'take Care that the Laws be faithfully executed'. Art. II, 3. It makes him the Commander in Chief of the Army and Navy, Art. II, 2, cl. 1, and empowers him to appoint and commission officers of the United States. Art. II, 3, cl. 1.
The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.
By the Articles of War, 10 U.S.C. 1471-1593, 10 U.S.C.A. 1471- 1593, Congress has provided rules for the government of the Army. It has provided for the trial and punishment, by courts martial, of violations of the Articles by members of the armed forces and by specified classes of persons associated or serving with the Army. Arts. 1, 2. But the Articles also recognize the 'military commission' appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial. See Arts. 12, 15. Articles 38 and 46 authorize the President, with certain limitations, to prescribe the procedure for military commissions. Articles 81 and 82 authorize trial, either by court martial or military commission, of those charged with relieving, harboring or corresponding with the enemy and those charged with spying. And Article 15 declares that 'the provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions ... or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions ... or other military tribunals'. Article 2 includes among those persons subject to military law the personnel of our own military establishment. But this, as Article 12 provides, does not exclude from that class 'any other person who by the law of war is subject to trial by military tribunals' and who under Article 12 may be tried by court martial or under Article 15 by military commission.
The Hamdi Court made a similar analysis to rule that Congress had authorized the battlefield detention of enemy combatants but that Congress HAD NOT authorized the suspension of the right to petition for a writ of habeas corpus and the procedures delineated by Congressional act.
And in Youngstown, the Supreme Court REJECTED the President's claim that Article II vested in him certain power as Commander in Chief that could not be restricted by Congressional action. Of particular note was the Youngstown Court's refusal to twist the record to preserve a claim of Constitutional authority by the President.
I think the panic that we see is Sunstein's, who has allowed the 9/11 attacks and the threat of terrorism to cause him to suspend his considerable legal acumen and basically check his powerful mind at the door. Sunstein is much better than this. His performance on Hugh Hewitt's show is clearly the nadir of his professional career.
