Earlier today I posted some general comments about David Broder's column regarding the NSA intercept program. I also want to comment specifically on Broder's argument that language in Justice Kennedy's recent opinion upholding Oregon's assisted-suicide law bodes ill for the government's defense of the NSA program.

Broder's point, which has been made by others as well, emphasizes that in the assisted-suicide case Justice Kennedy rejected the notion that vague language granting the executive implied authority overrides a carefully crafted regulatory scheme that limits executive power. This portion of Kennedy's majority opinion is said to be significant because the Bush administration argues that the intercept program was authorized by Congress when it authorized the president to “use all necessary and appropriate force” by enacting the Authorization for the Use of Military Force (AUMF). One can imagine a majority of the Court rejecting the argument that this general authorization negates the specific procedural dictates of FISA, just as it rejected a loosely parallel claim in the assisted-suicide case.

Broder's thesis overlooks several important considerations. First, in the Hamdi case (which actually involves the AUMF, not some totally unrelated act), the Supreme Court agreed with the kind of implied authority argument that Broder thinks it will reject in the NSA intercept context. Specifcally, the Court ruled that AUMF grants the president implied authority to detain U.S. citizens in the U.S. because detention to prevent a combatant from returning to the battlefield is a fundamental incident of waging war. In the same way, AUMF can be read as authorizing the president to conduct communication surveillance targeted at the enemy on the ground that it too is a fundamental incident of waging war. If so, then the intercept program does not violate FISA because that statute contains an exception for surveillance authorized by statute. In addition, Broder overlooks the fact that even if the NSA program violates FISA, it may be that, to that extent, FISA is an unconstitutional encroachment on executive power. The Oregon assisted-suicide case says nothing about how the Supreme Court would resolve that issue.

Even so, I think Broder is correct in predicting that the Supreme Court ultimately will reject the president's arguments. In close cases, the modern Court can be expected to rule in favor of more, not less, judicial process. It can also be expected to rule in ways that will bring it more, not less, approval from the likes of David Broder.

Posted by Paul at 09:47 PM  |    |