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Defending My "Devotion to the Forms of Legality," "Verging on Fanaticism"

By Jack M. Balkin

Guilty as charged. Yes, careful lawyer that I try to be, I did include a qualification to suggest that maybe there could, one day, be some case in which a newspaper should refrain from publishing a story about rampant illegality, affecting the privacy of tens or hundreds of thousands of U.S. persons, authorized by the President of the United States (in part on a theory that he has the constitutional authority as Commander in Chief to disregard the law). I can't just now think of what that case might be; but who knows? Hence, my assumption that the Times applied a strong, almost irrebuttable presumption in favor of publishing (once it was convinced the program was unlawful), rather than a bright-line rule. But I agree with David -- it's hard to imagine an easier case than this one.

Did the program "benefit the nation," in the sense of providing the intelligence community with relevant and important information it would not have obtained under FISA? I certainly hope so. But then, that would be true, in spades, if the President simply ignored all legal restrictions on intelligence-gathering -- an Executive unbounded by laws regulating surveillance, detention, interrogation, etc., would undoubtedly obtain far more information about the enemy than an Executive who takes care that such laws are faithfully executed.

And therefore . . . what, exactly? If that sort of "benefit" were a sufficient reason to refrain from publishing, then newspapers would never reveal any wrongdoing undertaken for security-related reasons (or for any other public purpose, for that matter). Eric doesn't suggest such a rule, of course -- he would ask the Times to weigh the benefits of lawbreaking against the "costs." I'm sure that at some level, the Times made such a calculation, based on what little they knew (i.e., as with Eric and me, not very much). Indeed, they invited the Administration to make the case that the program was legal, or that this was the rare case in which, despite the illegality of the program, the cost/benefit balance was so out of whack that my presumed "presumption" in favor of publishing a story about gross executive lawbreaking should have been rebutted. As it turns out, however, the Administration gave them very little reason to rebut the presumption -- and what it did say to the Times turned out to include representations that the Times discovered to be blatantly false, which left the Times with no reason at all to think that the presumption should be overcome -- and with a great deal of skepticism that the sky would, indeed, fall.

Callous disregard for the real costs and benefits? Hardly. What the Times knew, and what Eric conspicuously ignores, is that we as a nation had already engaged in a wide-ranging, detailed, and contested debate, over three-plus years, about the various costs and benefits of allowing the executive free reign to engage in domestic electronic surveillance, and we had reached a consensus about the proper resolution of such calculations in the manner prescribed by the Constitution: We enacted a law, by overwhelming majorities of both houses of Congress, and with the support of Presidents of both parties -- the Foreign Intelligence Surveillance Act. And Congress had repeatedly amended that law over the years whenever the executive made the case that the cost/benefit analysis had changed. (Eric confidently states that the NSA program did not, so far as we know, "actually injure anyone." This is just another way of saying that Eric disagrees with the vast majorities of Presidents, legislators and the public who have concluded that there are real harms when the government surveilles its citizens' e-mails and phone calls.)

To be sure, President Bush thought that the Congress, and all Presidents before him, had miscalculated the costs and benefits, and that this was a bad, bad law. But he also had good reason to believe that, even after 9/11, he would not have been able to persuade the Congress and the public to change that law in the manner he desired. And so he willfully disregarded it. That is to say, he violated it.

Under these circumstances, would it really make much sense for the Times to have attempted to independently evaluate whether Congress was "right" to enact FISA and its amendments -- whether Bush's cost-benefit analysis was more reliable than the one codified in careful detail in Titles 18 and 50? Wouldn't it make more sense for the Times to presume (there's the lawyer in me again!) that our national consensus of costs and benefits should receive the benefit of the doubt? (And this is even before we add to the mix what Eric cavalierly (grudgingly?) refers to as the "costs" of our Executive branch systematically and secretly running roughshod over the law itself. Here, Eric, I'm afraid you'll have to indulge me my "fanatical . . . devotion to the forms of legality." That's not only the lawyer in me -- it's the citizen, too.)

In any event, did the Times actually have reason to believe that its story would cause any substantial harms at all? Notably, the Administration failed to make such a case to the Times. And if the Administration couldn't convince the Times of the "costs," why should the newspaper decline to publish? The Administration's theory of harm, apparently, was that the NSA would have to suspend the program if it were publicly revealed. And in one sense that was true: Once the Times story broke, the FISA court took steps (a year later) to effectively bring the Administration into compliance with the law, which temporarily brought a halt to the program in early 2007 -- but only until the Administration could persuade Congress that there was a need to enact changes to the law to allow the program to resume once again. To the extent that was a "cost" -- prompting our legal system to work the way it was supposed to, rather than to allow the President to unilaterally arrogate all decisionmaking to himself, notwithstanding the law -- it's hardly one that should have given the Times pause; indeed, the debate within the FISA court, and with the Congress and the public, that resulted from the Times' decision to publish, and that continues to this day, is one of the great virtues of its stories.

Ah, but even if the program is back up and running, isn't it far less effective today because its existence (though not any details about NSA capabilities) has been brought to light? In other words, Eric seems to be saying, isn't a secret program secretly operated in the teeth of a law that appears to prohibit it more effective than one that has received public legal sanction? Eric quotes Jack Goldsmith as having written that the "revelations by Risen and Lichtblau had alerted our enemies, put our citizens at risk, and done ?great harm' to the nation." Like Eric, I know Jack well, and I believe he was entirely sincere in writing that. Perhaps he;s even correct. But Jack -- who is appropriately scrupulous about not revealing any classified information -- has not been able to provide either me or Eric with any reason to believe that the Times story tipped off al Qaeda in any way that diminishes NSA intelligence-gathering. And, more importantly, the Administration was not able to provide the Times with any plausible explanation of why that would be true, either. What does al Qaeda know now that it did not know (or have good reason to suspect) before it heard of Lichtblau and Risen?

Orin suggests that the real problem was not the Times stories, but the revelation in the Risen book that the NSA was intercepting foreign-to-foreign calls routed through U.S. switches. I think there are a couple of problems with this theory (besides the fact that it is not a criticism of the Times or Lichtblau). The first is that, if I recall correctly, the Administration has disclaimed the notion that the NSA program involves "sitting on the switches" and sweeping up calls indiscriminately from those switches, such as for purposes of data-mining. (Orin, do I have that right?) More importantly, my understanding (perhaps mistaken) is that even before State of War was published, it was not a secret that most foreign calls were routed through U.S. switches and, most important of all, as David Kris has repeatedly stressed, there was never anything unlawful, under FISA or other laws, about intercepting such foreign-to-foreign calls, in the first place. As the Washington Post reported three weeks ago:

Director of National Intelligence Mike McConnell . . . has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States. But in response to a question at [an ABA] meeting by David Kris, a former federal prosecutor and a FISA expert, [Assistant Attorney General Kenneth] Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States.

That is to say, there was no reason for al Qaeda, even before 2006, to believe that the NSA could not, or would not, surveille all of its foreign-to-foreign phone calls -- and that one effective and lawful way for NSA to do so would be to intercept such calls at U.S. switches, without the need for a judicial order. The NSA program revealed by Risen and Lichtblau presumably did not change that practice, which could have been initiated even before 9/11. (Of course, when it comes to these sorts of technical questions, I'm hardly an expert; therefore I welcome corrections or qualifications from Orin and others.)

Now, surveillance of foreign-to-foreign e-mails might have been covered by FISA (as "electronic surveillance" under 1801(f)(4)), if acquired from storage on a server in the United States, because stored e-mail is neither a "wire communication" nor a "radio communication" under FISA. Did Risen's book reveal that the NSA was intercepting such e-mails without court orders? If so, it might have revealed to al Qaeda this much: that although U.S. law requires a court order for such interceptions, the NSA was in fact ignoring that law, and intercepting the e-mails without judicial approval. Assuming there were those within al Qaeda who parse FISA that closely, it would remain the case that all Risen's book would have revealed to such persons was that the NSA was not following a court procedure that U.S. statutes prescribed. If al Qaeda was sending certain e-mails on the assumption that they would not be intercepted because the American executive branch was complying with FISA (is this sounding sufficiently ridiculous yet?), Risen's book arguably let them in on a secret, not about NSA surveillance capabilities, but about the fact that the Executive branch was refusing to follow U.S. statutory law. If that's the secret that the book revealed -- that al Qaeda should not uncritically assume the NSA will abide by FISA's requirements for court orders for foreign-to-foreign e-mails routed through the States -- well, can Risen really be criticized for that? After all, that would not have revealed anything about secret NSA capabilities when the agency is complying with the law.

Finally, Eric stresses that insofar as the Times' rationale for publication depended on its conclusion that the NSA program was unlawful, the Times ignored the fact that the program's illegality "was in the process of being corrected by Justice Department lawyers before the story was released." In other words, the Times' story did not, in Eric's view, have even the virtue of bringing to a halt an ongoing unlawful practice; and, as such, the Times's revelation of past illegal conduct (in the John Yoo era) might have been an inadequate justification for revealing a current, legal program of great value: "The Times made that particular outcome-a lawful program that was also effective because it was secret-impossible by publicizing it to the world."

Again, I'm not so sure the Times made an "effective" program impossible: The progam is once more in operation, and the Administration has vociferously and continuously argued that it is of enormous value.

But more to the point, even the "modified" program, as apparently approved by Jack Goldsmith, was quite plainly unlawful -- or so, I think, the Times should have concluded. Jack's theory, apparently (and here I stress once again that I am basing this solely on public sources), was that the program was lawful because Congress authorized it -- in effect, in part repealed FISA by implication -- when, on September 18, 2001, it authorized the President to use all necessary and appropriate military force against those responsible for the 9/11 attacks. This legal theory is defended in great detail in the DOJ "White Paper" issued on January 19, 2006.

I have enormous respect for Jack's legal acumen, and for the critical corrective role he played at OLC, which I have repeatedly lauded. But, with all respect, the "AUMF" theory for why the revised NSA program was legal simply doesn't pass muster, for reasons I have written about repeatedly. (See for example the letters collected here and here; and posts such as this and this.) Other than Eric, there are few serious scholars or lawyers who have tried to defend the argument and, more importantly, as far as I know not a single legislator of the hundreds who voted for the AUMF has agreed that they intended to thereby authorize a surveillance program that circumvented FISA, or has even given the AUMF theory any credence: the argument has met with uniform ridicule among those legislators who voted for the AUMF, including some who are defenders of the NSA program on other grounds.

All of which is to say that the Times had every reason to think the NSA program continued to be unlawful. In any event, the Times story would have been justifiable even if it had only brought to light the fact that before March 2004, the President had authorized a far less discriminating NSA program of remarkable (and still largely unknown) breadth, based on a legal theory so preposterous -- so much more indefensible than even the AUMF argument! -- that the entire top echelon of the Justice Department, Goldsmith included, threatened to resign if the President did not abandon it.

Full post as published by Balkinization on March 28, 2008 (boomark / email).