The Good News: At Least Alberto Gonzales Is Not On The Supreme Court

by hilzoy

Today the Attorney General went into more detail about what he takes to be the legal authorization for the administration's program of secret surveillance. And his explanation is really quite extraordinary. Yesterday I said that, as far as I could tell, the administration's reasoning would allow the President to do literally anything in time of war:

"Does he want to imprison a United States citizen indefinitely, without a warrant, and habeas corpus be damned? Fine! Does he want to tap our phones and read our email, also without a warrant, in defiance of the FISA statute and the Fourth Amendment? Also fine! As far as I can see, on this reading of the Constitution, there's no reason he couldn't decide that his war powers extended to levying taxes without Congressional approval (wars cost money, you know), or throwing Congressman Murtha in jail to prevent him from sapping our troops' morale, or suspending the publication of all newspapers, magazines, and blogs on the same grounds, or making himself President For Life on the grounds that we need the continued benefit (cough) of his awesome leadership skillz to successfully prosecute the war on terror."

I was hoping (though not expecting) that I'd be wrong, and they would turn out not to be making the world's most ludicrous legal argument. But no: they are.

Congressional Authorization

Gonzales begins by admitting that FISA does require a warrant in the kinds of situations the President's order covers:

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires."

However, he thinks that Congress provided that authorization:

"Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

Really? Here's the text of the Authorization to Use Military Force, leaving out the 'Wherefore' parts, which (as I understand it) have no legal force:

"SECTION 1. SHORT TITLE.

• This joint resolution may be cited as the `Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

• (a) IN GENERAL- That the President is authorized 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

• (b) War Powers Resolution Requirements-

• (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

• (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution."

Hmm: does that look like an authorization to circumvent existing law? Not to me. However, Gonzales addresses this point, citing the Hamdi case:

"As you remember, in that case, Mr. Hamdi was a U.S. citizen who was contesting his detention by the United States government. What he said was that there is a statute, he said, that specifically prohibits the detention of American citizens without permission, an act by Congress -- and he's right, 18 USC 4001a requires that the United States government cannot detain an American citizen except by an act of Congress.

We took the position -- the United States government took the position that Congress had authorized that detention in the authorization to use force, even though the authorization to use force never mentions the word "detention." And the Supreme Court, a plurality written by Justice O'Connor agreed. She said, it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder -- the duration of the hostilities. So even though the authorization to use force did not mention the word, "detention," she felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, "authorize the President to use all necessary and appropriate force."

For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance."

(Note: I never did like that part of the Hamdi case. Now I like it even less.)

Now: the Authorization for Use of Military Force, as one might infer from its name, is an authorization to deploy what the resolution describes as the 'United States Armed Forces'. It was, more specifically, an authorization to invade Afghanistan. There is no indication that the Congress saw it as a blanket suspension of all known laws, whenever those laws seemed in any way to interfere with the prosecution of the war on terror. And some Senators have explicitly stated that they did not see it that way:

"Responding to Gonzales this morning, Feingold said on NBC's "Today" show: "Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States."

Also:

"The AUMF authorizes action against those responsible for 9/11.  In fact, there was a huge debate at that time. . . .the White House's original language covered "terrorists", and Congress brought them back, forcing them to link "military force" with 9/11. Even if one buys the argument that surveillance against U.S. persons or communications is part of "military force" or active combat, the President better hope that every person actually targetted was linked to Al Qaeda (and not just any terrorist organization). Bush today gave some hint that the surveillance was targetted against those with  "a clear link" to al-Qaida, but then he added "or related terrorist organizations." That's not exactly in the language of the AUMF."

And:

"Today, we learn from the New York Times that President Bush secretly authorized the NSA to spy on Americans without a warrant, using the September 2001 resolution that authorized the president to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the 9/11 attacks. However, this is not a declaration of war. And, in particular, it lacks the crucial language that modern delcarations of war have contained, which states that "all of the resources of the country are hereby pledged by the Congress of the United States." This language is present in the declarations for WWI and II. It is a recognition by Congress that total war is in fact total, and may require the president to act domestically in a legislative manner.

Absent such language in a formal declaration of war, I highly doubt that the president's authorization of domestic spying is legal."

Ah, one might say, but whatever the members of Congress thought they were doing, what matters is the bill they actually passed. So: did they, in fact, pass a resolution authorizing the President to set aside FISA? I don't think so, for four reasons.

First, I think that the plain sense of the resolution concerns military force, not the overturning of any statutes the President feels he needs to disregard.

Second, the resolution authorizes the President to use "all necessary and appropriate force" against those responsible for the attacks on 9/11. This program was not necessary: FISA allows the Attorney General to authorize emergency wiretaps in cases in which it's not possible to get a court order in time, so long as he then applies for a court order within 72 hours. If there was no need to go around the law, then doing so can hardly be a 'necessary' use of force. Nor is it in any obvious way 'appropriate' to disregard FISA, given the alternatives of (a) getting a warrant, either beforehand or within 72 hours, or (b) asking Congress to change the law.

Third, this interpretation of the Authorization for Use of Military Force can, at best, be seen as one among several possible interpretations, not as the clear sense of the text. Last time I checked, it was a rule of statutory interpretation that one should seek to interpret the laws enacted by Congress in such a way that they are consistent with one another. When you have a choice between two interpretations, and the first would make laws in a given area consistent with one another while the second would make them inconsistent, you should choose the first. And it's also a principle of statutory construction that one should prefer an interpretation that does not make legislators out to be idiots over one that does. And it is very hard for me to see how the administration's interpretation of the Authorization for Use of Military Force does not violate these rules.

Consider the fact that a few short months after passing the Authorization for Use of Military Force, the very same Congress passed the USAPATRIOT Act. In debating this Act, Congress explicitly considered the question whether FISA needed to be revised in order to give the President greater power to conduct surveillance against terrorists. If the Authorization for Use of Military Force had already given him unlimited power to conduct surveillance against terrorists, then the entire debate about which new powers to grant him would have been unnecessary, and those sections of the PATRIOT Act which are designed to deal with surveillance of terrorists would be completely pointless. And if the Congress had intended to grant the President the specific powers he claims make his domestic spying program legal, then it is hard to see why that very same Congress, a few short months later, passed a new law that reaffirmed that the surveillance the administration was carrying out was illegal.

For this reason, I cannot see how this interpretation of the Authorization for Use of Military Force can be squared with the fact that the Congress subsequently thought it had to debate the PATRIOT Act. If it can't, and if the plain sense of the Authorization does not require this contradictory reading, then according to the standard rules of statutory construction mentioned above, the Authorization for Use of Military Force should not be interpreted this way. (If I'm wrong about this, let me know.)

Fourth: Peter Swire gives another reason, based on statutory construction, for thinking that the Authorization for Use of Military Force should not be read as the administration does:

"As a matter of reading statutes, this is a weak argument. On the one hand, we have a very specific statement by Congress in Sec. 2511(2)(f) that Title III and FISA are “the exclusive means.” On the other hand, the Administration seems to say that the general Congressional resolution amended that statute, without anyone realizing it. That approach is contrary to the usual reading of statutes, where there is no “repeal by implication” – you have to say you are repealing a specific statute for the repeal to be effective."

Bad Faith

Gonzales also lets slip one clear indication of bad faith, noted by Marty Lederman:

"This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."

And again:

"That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program."

So: Congress supposedly authorized this program, and then passed a law reaffirming its illegality, and then, when the administration asked around to see whether the law might be amended to make this program legal, they were told that "that that would be difficult, if not impossible." And somehow this is all supposed to show that the administration had Congressional authorization for what it did.

Right.

The Constitution

Legal analyses of the question whether this program violates the Fourth Amendment have been offered by people far more qualified than I am here and here. I am will confine myself to considering the Attorney General's claim that the President, as Commander in Chief, has the inherent authority to decide whom to place under surveillance. He asserts this here:

""There were many people, many lawyers, within the administration who advised the president that he had inherent authority as commander in chief under the Constitution to engage in this kind of signals intelligence of our enemy," Gonzales said in an interview with CNN."

And here:

"I might also add that we also believe the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity. Signals intelligence has been a fundamental aspect of waging war since the Civil War, where we intercepted telegraphs, obviously, during the world wars, as we intercepted telegrams in and out of the United States. Signals intelligence is very important for the United States government to know what the enemy is doing, to know what the enemy is about to do. It is a fundamental incident of war, as Justice O'Connor talked about in the Hamdi decision. We believe that -- and those two authorities exist to allow, permit the United States government to engage in this kind of surveillance."

And according to the New York Times:

"The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.""

As best I can tell, the idea is: signals intelligence is a part of waging war; the President, as Commander in Chief, has the authority to decide how to wage war; therefore, any Act of Congress that purports to constrain these decisions is void, since it arrogates to Congress a power that the Constitution grants to the President.

Now: there are various ways in which one could interpret the Constitution's claim (Article II, sec. 2) that "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". On the one hand, one could go with the extremely narrow view offered by Alexander Hamilton (Federalist 69):

"The President is to be the 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. (...) The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. (...) In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature."

Alternately, one could opt for the infinitely expansive interpretation offered by the administration: that the President has the power, in time of war, to do whatever he takes to be necessary to wage war. Or one could carve out some sort of middle ground. Deciding among these alternatives is a matter of Constitutional interpretation.

As I understand it, it is a principle of Constitutional interpretation that the words of the Constitution should, where possible, be interpreted straightforwardly, as meaning what they say, and not in some tortured way. In addition, just as it is a principle of statutory interpretation to prefer interpretations that make statutes within a given area consistent with one another, it is a principle of Constitutional interpretation to prefer interpretations that make the Constitution consistent. Finally, where possible, the Constitution should be interpreted in such a way as not to make the people who wrote it seem like idiots. The interpretation of the President's powers as Commander in Chief offered by the administration seems to me to fly in the face of all three of these principles.

First: it contradicts the principle of interpreting the Constitution straightforwardly. This is true with respect to the Commander in Chief clause, which is (to my ear) much more naturally interpreted as granting the President the right to issue military orders than to overturn statutes at will. But it is much more true with regard to other parts of the Constitution.

For instance, the Constitution tells us (I 1) that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Legislative powers are powers to make laws, and the Constitution also tells us that laws must be passed by both houses of Congress and signed by the President, or else passed by two thirds of both houses. Congress also has this power (1 8): "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." (Note that that last bit says that the Congress has the power to make laws needed to carry into execution any power vested in the government of the United States -- including the Executive. It would therefore seem to have the power to enact those laws needed to carry into execution the President's War Powers.) For his part, the President has the obligation (II 3) to "take Care that the Laws be faithfully executed".

So what are these "laws" that the Constitution speaks of? A straightforward reading would be take its cue from Article I, sec. 7, which tells us that when certain things (e.g., being passed by both houses of Congress and signed by the President) happen to an act, "it shall become a Law", and if certain other things happen to it, "it shall not be a Law". We should probably add: when an act is ruled unconstitutional, it ceases to be a law; likewise, when some subsequent statute explicitly repeals it, it ceases to be a law. Probably there are a few more straightforward modifications that I'm missing; in any case, this would seem to be the straightforward reading.

On the Bush administration's view, however, we have to take a much stranger view of what constitutes a "law". For on their interpretation, we somehow need to explain how the President's duty to "take Care that the Laws be faithfully executed" is consistent with his Commander in Chief powers, which hold that no law binds his conduct in time of war. The only obvious way to do this is to say that when Congress passes an act and the President signs it, that act is only a "law" insofar as it does not bind the President in times of war; insofar as it does bind him, it is not a law. This is, to put it mildly, not an obvious way to read 'law'.

(We do have to make a similar exception for laws that the courts find unconstitutional, but this is required by the principle that we should not suppose the framers to be idiots, as they would surely have been had they passed a Constitution with no binding force at all.)

Likewise, the Constitution grants the Congress "all Legislative Powers herein granted". A straightforward reading of "legislative" would be: the power to make laws; those same laws that the President must take care to faithfully execute. If the President can make his own rules during time of war, isn't that a 'legislative power'? And if his right to do this is derived from the need to actually carry out his Commander in Chief responsibilities, isn't the power to make all the laws needed to carry out those powers given to the Congress in Article 1, section 8? Again, tortured readings of the relevant terms are needed to make sense of the Constitution on the administration's reading.

Second: the administration's interpretation contradicts the principle of making the various provisions of the Constitution consistent with one another. The Constitution tells us that the President "shall take Care that the Laws be faithfully executed". If his powers as Commander in Chief gave him the authority to set them aside at will, that would make various parts of Article 2 inconsistent with one another. (This is the flip side of the last point: we could of course make these provisions consistent by adopting tortured readings of the terms in question: if a "law" was only 'an act passed and signed into law, but only insofar as it does not concern anything related to a war', then everything would be consistent. But that's a crazy way to read 'law'.)

Third: the administration's interpretation requires us to conclude that the framers of the Constitution were idiots. On this interpretation, they wrote a Constitution that contains powers that are guaranteed to come into conflict: the Congress has the power to pass laws that govern us in peacetime, and that govern things not relevant to wars at all times; the President has the power to disregard those laws in wartime, when they in some way impinge on the war. But not only did they not give us any guidance about how to adjudicate this glaring conflict, they seem not to have recognized it.

Likewise, the framers were concerned to construct a system of government that would not expose the American people to tyranny. The way they decided to do this was to separate the powers of government, as I noted earlier. Moreover, they explained at length that this was what they were doing, and provided an extensive justification of this, which centered on the dangers of concentrating the executive, legislative, and judicial powers in one set of hands. Having determined to separate the powers of government, and having explained in detail why this was an absolutely crucial thing to do, what do you think they did? They wrote a Constitution in which all the powers of government were given to the executive in time of war!

But of course. I mean, what could possibly be more natural than for skeptical James Madison to lay the groundwork for tyranny?

As far as I can tell, the administration's supposed justification doesn't even pass the laugh test. (The cry test, maybe.)

These are the people to whom we have entrusted one of the best systems of government ever devised. As far as I can tell, they have adopted a view of their powers that might as well have been designed to provoke a Constitutional crisis. What I'd like to know is: what other decisions have they taken, based on their apparent belief that they can do literally anything they want? And how are we going to find out about those decisions?

Comments

[Jesurgislac]

Hilzoy: What I'd like to know is: what other decisions have they taken, based on their apparent belief that they can do literally anything they want?

They have set up a prison in Guantanamo Bay, and imprisoned people in it incommunicado. The people imprisoned there were (variously) sold to the US by bounty hunters, kidnapped by the CIA from countries where the US is not at war, or taken in combat against the US or its allies.

And how are we going to find out about those decisions?

You will read about them in the news from January 2002 onwards, and you will (it appears) pay no attention.

[Gary Farber]

So: Congress supposedly authorized this program, and then passed a law reaffirming its illegality, and then, when the administration asked around to see whether the law might be amended to make this program legal, they were told that "that that would be difficult, if not impossible." And somehow this is all supposed to show that the administration had Congressional authorization for what it did.

Right.

This is the truly marvelous part, though. It takes a special kind of thinking, doncha think?

I had a couple of thoughts about the whys of why they would have engaged in this program here, the other day, by the way.

Also, maybe CIFA has been discussed here at some time I wasn't paying attention. As usual, a fair number of other posts.

[Gary Farber]

"They have set up a prison in Guantanamo Bay, and imprisoned people in it incommunicado. The people imprisoned there were (variously) sold to the US by bounty hunters, kidnapped by the CIA from countries where the US is not at war, or taken in combat against the US or its allies."

Indeed. And no one here heard of any of this stuff until you just informed us. Many thanks.

"You will read about them in the news from January 2002 onwards, and you will (it appears) pay no attention."

Indeed. Hilzoy pays no attention. Quite so. Clearly.

Interesting view of her "appearance." Who could argue? What evidence could one possibly use?

[rilkefan]

What I'd like to know is: what other decisions have they taken, based on their apparent belief that they can do literally anything they want?

If the answer isn't "none", I don't want to know. What I don't know can't hurt me.

[Anarch]

What I don't know can't hurt me.

I'm going to prove you wrong... but you won't know when.

[Anderson]

Jes, was "you" a collective, non-Hilzoy "you," or have you been reading too much Lenin? Gracious.

[Jesurgislac]

Jes, was "you" a collective, non-Hilzoy "you"

Nope. It was specifically directed at Hilzoy.

[hilzoy]

Jes: reply.

[cleek]

hey all you legal scholars, does this guy have a point ?

[hilzoy]

cleek: no. Robbins cites FISA sec. 1802 thus:

"Naturally, there are conditions. For example, the surveillance must be aimed at "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers." Wait, is a terrorist group considered a foreign power? Yes, as defined in section 1801, subsection (a), "foreign power" can mean "a group engaged in international terrorism or activities in preparation therefore," though the statue language would explicitly apply to "a faction of a foreign nation or nations.""

The actual text from FISA he's referring to says:

"(A) the electronic surveillance is solely directed at -
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and ..."

Note the references to "a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title". Here is sec. 1801 on 'foreign powers':

"(a) ''Foreign power'' means -
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments."

So: what he has done is: leave out the part of the text that restricts the use of 'foreign powers' by adding 'as defined in section 1801(a)(1), (2), or (3) of this title'; then saying 'in sec. 1801, foreign powers includes terrorists', without noting that that's in 1801(a)(4), and is thus NOT relevant to the statute he's discussing.

Later, he says:

"O.K. fine, but what about the condition that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party?" Doesn't that necessarily cut out any and all communication that is domestic in origin or destination? Well, not quite. Return to section 1801, subsection (i): "United States person," which includes citizens, legal aliens, and businesses, explicitly "does not include a corporation or an association which is a foreign power."

Well sure, but does that mean that even if you are a citizen you cash in your abovementioned rights by collaborating with terrorists? Yes you do."

Here's the actual definition of US person:

"(i) ''United States person'' means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section."

Note that 1801 specifically includes ANY citizen or legal permanent resident, and specifically EXCLUDES not 'agents of foreign powers' (who can, apparently, be US persons), but "a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section." So there are several things wrong with Robbins' point here:

(a) your average US citizen or permanent resident is not a corporation or association, but a human being, and this the exemption has nothing to do with him or her.

(b) He's left off "as defined in section 1801(a)(1), (2), or (3) of this section", in other words the part that makes it clear that the corporations and associations in question do NOT include terrorist groups (who are under 1801(a)(4).)

(c) In what he goes on to say, he seems to assume that being an agent of a foreign power makes you stop being a US person. This is false.

There's probably more wrong with what he says, but this should do for now.

[Ugh]

I it a useful rule that anything posted on NRO is presumptively wrong until proven otherwise.

[cleek]

hilzoy, thanks.

anything posted on NRO is presumptively wrong until proven otherwise.

i agree... but when it comes to law, i don't have the chops to back my gut feeling. that's why i come here! :)

[hilzoy]

Actually, I think I might front-page my comment, as another intellectual integrity watch thingo.

[Ugh]

but when it comes to law, i don't have the chops to back my gut feeling. that's why i come here! :)

I see, but don't underestimate the ability of people to conveniently leave out pertinent portions of the statute, and wholly ignore regulations and case law.

Speaking of coming here, why was not ObWi nominated for best group blog? Was it the wholesale slaughter of the other nominees that would ensue?

[Gary Farber]

"Speaking of coming here, why was not ObWi nominated for best group blog?"

In which poll? (I ignore all of them, so far, because no one ever nominates me,or at least votes in numbers larger than countable on a hand; when one gives me significant votes, it will clearly have become entirely perceptive and wise and attention must be paid.) (This is also the principle under which the BlogStreet 100 Most Influential Blogs is perfectly obviously the Best Blog Measure Evah!) (Much though I float up and down between #10 and #20.)

[Ugh]

Good point gary, I'm thinking of the poll where redstate and tpmcafe were running neck and neck in the last week or so.

[DaveL]

It's rather frightening to find ourselves with an Attorney General who really doesn't even bother to pretend to engage in anything resembling legal reasoning before advising the President that he can do whatever he pleases.

[Gary Farber]

So former Acting CIA Director John McLaughlin (not the former Father John of Nixon fame, now known for his tv shows) was just on PBS Newshour pushing the line that because of terrorists constantly switching to new cellphones and such on a daily, or even more frequent, basis, FISA warrants can't be used to track them because you'd be asking for a new warrant for each terrorist each day, and it's not practical.

As I said on Sunday, tech and volume were starting to look like the Secret Origins here. (I need to do a new post on this; I wanted to wait for a bit of clarifying settling, and that's now happened.)

That actually seems to be a not-unreasonable point. The reponse, of course, is that Congress has to consider the problem, and make law to deal with. The President doesn't get to make up the law on his own.

[Joe]

"The President doesn't get to make up the law on his own."

Makes perfect sense to me. This post does as well ... it is eminently reasonable and erudite while being faithful to our constitutional system.

Unlike the current administration. Anyway, bravo Hilzoy. Excellent post.