Wednesday, January 25, 2006

The King's Friends

"One thing that may have become clear during those conflicts was that, if criminal prosecution was controlled by the crown, the King's friends could get away with murder." D. Friedman, Law's Order Chapter 17.

England in the 18th century had neither police nor public prosecutors; any crime could be prosecuted by any Englishman. In practice most criminal cases, like tort cases in our legal system, were prosecuted by the victim or his agent. The quote above suggests one reason why they did it that way, one advantage of a legal system where offenses are privately prosecuted, such as tort law, over a system where prosecution is by the state, such as modern criminal law.

I was reminded of this point by the recent controversy over warrentless wiretaps. FISA, the Foreign Intelligence Surveillance Act, which was created to control such activities, provides for a special court to issue warrants for wiretaps intended to intercept communications by a foreign enemy or "a group engaged in international terrorism or activities in preparation therefor." The National Security Agency, by its own admission, engaged in a large number of such wiretaps without such warrants, in apparent violation of the clear letter of the law.

The administration argues, on grounds that I, at least, find unconvincing, that the acts were legal. Presumably the question will eventually reach the Supreme Court. It is at least possible that the court will reach the same conclusion that I, the Congressional Research Service, and at least some legal scholars have reached.

FISA prescribes penalties for anyone who "engages in electronic surveillance under color of law except as authorized by statute." If the Supreme Court finds the administration's arguments unconvincing, that describes hundreds, perhaps thousands, of people working for the NSA. It also prescribes penalties for anyone who "discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute." That describes any member of the Administration, from the President down, who was aware of the NSA program and used the information it produced.

"An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both." Foreign Intelligence Surveillance Act § 1809. c.

What odds would anyone like to offer that any of the people arguably guilty of that offense will end up spending five years in prison, or paying a $10,000 fine?

My article "Making Sense of English Law Enforcement in the 18th Century"

An examination of the legality of the NSA wiretapping from The Volokh Conspiracy


Anonymous said...

Congress can always legalize it (retroactively), thus ending the legal controversy. (Well, someone could still argue that the warrentless wiretapping violates the Constitution, but that's a much harder argument to win).

Anonymous said...

I guess I'd say that the NSA people probably had a pretty good reason to think what they were doing was legal (the president told them to, and the Justice dept. and their own lawyers apparently signed off on it). I don't know how the law works in this area, but I assume the actual NSA employees would be safe from prosecution if they thought they were following the law. Could the president go to jail for this, or would it just be grounds for impeachment?

I'll admit I don't understand the constitutional arguments being made here. It seems to me that the claims of power made by the administration would allow the president to do almost anything, and that the remaining check on his powers comes from the fact that he wouldn't be able to get some orders to be obeyed. For example, Bush seems to claim the power to wiretap or arrest and detain without trial any American on his say so. But if he had tried to do this with John Kerry in 2004, nobody would have followed his orders, and he'd have been impeached by his own party. (And if that didn't happen, we'd have an honest-to-god civil war.)

Milhouse said...

He hasn't claimed the right to conduct domestic wiretapping, of people unconnected with the enemy. Remember that the NSA interceptions we're talking about were of international communication, and therefore, at least before FISA became law, perfectly legal.

As for detaining Americans "on his say so", if you're talking about Abdullah al-Muhajir, I have a big problem distinguishing his case from that of Herbert Haupt. Another American, arrested in Chicago as an enemy combatant, detained, tried, and executed by the executive branch, without the judiciary getting a say in the matter. The Supreme Court said he had no right to habeas corpus, which means, essentially, that they said it was none of their business whether he was innocent or guilty, that was a matter entirely for the military. The military said he was a German saboteur, and it was entitled to make that determination, and to put him up against a wall and shoot him for it, without having to bring him before any civilian court. Why is al-Muhajir different?

There's a war on, and it's the president's job to fight that war. And the constitution gives him whatever power he needs to fight it, including interecepting enemy signals, and detaining enemy soldiers. Not only does he not need Congress's permission to do it, but Congress has no authority to forbid him from doing it, and to the extent that any law prevents him from doing it, that law is unconstitutional.

David Friedman said...

"There's a war on, and it's the president's job to fight that war.... Congress has no authority to forbid him from doing it, and to the extent that any law prevents him from doing it, that law is unconstitutional."

"The Congress shall have power ...

To make Rules for the Government and Regulation of the land and naval Forces;"(Constitution, Article I section 8)

So is your position that Congress can make rules for the government and regulation of the military but the President isn't obliged to obey them? That seems an odd reading of the text.

Milhouse said...

No, I see "rules for the government and regulation of the forces" as meaning just that - things like the UCMJ and the system of ranks, pay scales, etc. Rules for how the military forces function.

I don't read that clause as giving Congress any say on how wars are to be fought - what strategies to use, where and how to confront the enemy, etc. That's exclusively in the President's sphere.

David Friedman said...

(Responding to Milhouse)

Rules such as "the military may not torture prisoners" or "the military may not search the homes of Americans without a warrant" would be rules for the regulation of the forces.

The Constitution says that the President is commander in chief--it doesn't say that he is authorized either to break the law or to violate those rules which, as per the Constitution, Congress makes for the military.

What is the textual basis for your contrary opinion? Where in the Constitution does it say that Congress cannot make either laws or rules and regulations for the military that restrict the President in making war?

On your view, suppose the President decides that the best way to pursue the war is to hang all Congressmen who oppose his policies? On what basis would you object, if you believe that the President has a blank check to do whatever he thinks helps win the war?

David Friedman said...

There was an interesting bit on CNN today(2/6/06) relevant to my conjecture about what was going on.
"When NSA goes after the content of a communication under this authorization from the president, the NSA has already established its reasons for being interested in that specific communication," Hayden told "Fox News Sunday."
It's possible that their reason for being interested is that one end of the call is a number they have already somehow associated with Al Quaeda. But it's also possible that they have used speech to text, searched for key words, and finding some key words is their reason for being interested.

David Friedman said...

Anyone interested in following the legal arguments should probably look at:

(unwrap the URL)

The authors are a collection of legal academics ranging from Richard Epstein to Lawrence Tribe.