January 10, 2006

The New York Times Needs to Read Power Line

Hatched by Dafydd

The New York Times today reports that the interrogation of Judge Samuel Alito today focused on a formerly obscure concurrance by a Supreme Court justice in 1952... in a case that has already been thoroughly analyzed, in far greater depth, by the tribunes at Power Line.

(Haven't we been down this road before? It's like déjà vu all over again!)

The case they refer to is Youngstown Sheet and Tube Company v. Sawyer 343 U.S. 579 (1952), and Paul Mirengoff at Power Line first discussed it back in late December, anent the NSA intercept program that has just been outed by anonymous "officials." Paul only laid out the basics of the particular concurrance by Justice Robert H. Jackson that is now, more than two weeks later, the "focus of [the] hearings" into Alito's nomination to the Supreme Court.

On New Year's Day, John Hinderaker took a whack at the Jackson formulation in a much longer piece.

The basics of the case -- and why lefties think it applies to President Bush and the NSA intercepts -- are quickly recounted in the Times piece:

The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejected President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program, will plainly be a central theme when questioning of Judge Alito begins Tuesday morning....

In 1952, the Supreme Court faced a set of clashing interests in the Youngstown case broadly similar to those in the current surveillance controversy. That April, President Truman seized the nation's steel mills to prevent an expected labor strike, saying that national security during the Korean War required uninterrupted access to steel.

In June 1952, in a 6-to-3 decision, the Supreme Court rejected the various legal rationales offered by the Truman administration for the seizures. Many of those rationales have echoes in the justifications offered by the Bush administration for its detention of enemy combatants, harsh interrogations and domestic surveillance without court approval.

"Echoes in the justifications..." wait, what did the Court actually decide in the Youngstown case?

Writing for the court, Justice Hugo L. Black said the president's power was extensive but not unlimited.

"Even though 'theater of war' be an expanding concept," Justice Black wrote, "we cannot with faithfulness to our constitutional system hold that the commander in chief of the armed forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nation's lawmakers, not for its military authorities."

Ah, of course: seizing private property to prevent a strike. Yes, I can see how that's "broadly similar" to the National Security Agency intercepting phone calls from al-Qaeda to their agents in the United States. And I can definitely hear those "echoes in the justifications" offered by President Bush why he should be able to hold enemy combatants in military detention.

To its credit, the Times does admit that the "broadly similar" facts seem oddly dissimilar:

There are, of course, obvious differences between the Youngstown case and recent efforts to combat terrorism. The seizure of the steel mills, for instance, was a wholly domestic matter. The surveillance program, by contrast, monitors international communications between the United States and other nations.

Um, yeah. Also, Truman tried to seize the steel mills in order to prevent a strike that he thought might interfere with the war -- whereas the NSA intercepts are direct warmaking actions to gather enemy intelligence: as Hinderaker said earlier (more or less paraphrasing the president), "If al Qaeda is calling you, we want to know why."

Justice Jackson's concurring opinion set up a formulation for the strength of a president's power:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate....

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain....

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

(The Left claims, of course, that the Foreign Intelligence Surveillance Act (FISA) forbids any "wiretapping" without a warrant -- but see below -- and that therefore, the president's power is Type III: "incompatible with the expressed or implied will of Congress," thus "at its lowest ebb.")

"It is not entirely clear why Justice Jackson's concurrence has had such a lasting impact," disingenuously muses the Times; for it is completely obvious why: because that concurring opinion is all that the Democrats have to throw against the commander in chief's obvious Article II power to fight wars. Therefore, they're going to keep waving it as a bloody shirt to urge on the masses.

Returning to Hinderaker's post on Justice Jackson's concurring opinion and its possible application to the NSA case, John begins his analysis so:

In my opinion, reliance on this analysis by critics of the NSA programs is misplaced, for several reasons.

The reasons he cites are quite persuasive:

  1. It was a concurring opinion that no other justice joined.
  2. The decision in Youngstown was a no-brainer: "if a President's constitutional powers allowed him to formulate and carry out domestic policy, including the seizure of private property, by executive order, then the President really would be a dictator," sayeth Brother John.
  3. The argument turned more on the president's charge to "take Care that the Laws be faithfully executed" than his powers as commander in chief.
  4. It isn't clear that Jackson's discussion and his three-scenario formulation were ever meant to apply to the president's war-fighting powers: "Jackson lays out his three categories before he specifically addresses any of the executive's Article II powers, then begins by talking about the President's exercise of 'the executive Power.'"
  5. The Court rejected the claim that Truman's powers as commander in chief allowed him to seize the steel mills on the grounds that that was a purely domestic action -- but the NSA intercepts are of foreign-originating calls and e-mails.

Even Justice Jackson himself appears to agree with Hinderaker on that last point. As John quotes from Jackson's opinion...

(Note: for reasons known only to themselves and perhaps God, the fine fellows at Power Line have taken to using three asterisks [ *** ] instead of the normal ellipsis [ ... ] to indicate words clipped out. They don't mean such passages are attended by three footnotes!)

There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.***That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.***

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.

Finally, one last comment. The Times article concludes with a backhanded legal opinion on FISA that appears, facially, to be utterly false:

The third category is where the president takes action at odds with the will of Congress. A 1978 law, the Foreign Intelligence Surveillance Act, appears to require court approval before monitoring of the sort the administration has acknowledged.

In fact, it says no such thing, as John pointed out in yet another Power Line post (I feel so inadequate):

UPDATE: If the program is as the President described it, and the interceptions are carried out overseas, then it is outside the scope of FISA. See the definition of "electronic surveillance" to which that statute applies, 50 U.S.C. Sec. 1801(f):

John then lists the four-part definition of "electronic surveillance," as used by FISA, no part of which appears to apply to the NSA intercepts, assuming we have been given correct information by the White House. The "electronic surveillance" that has been "acknowledged" by the Bush administration does not, thus, "require court approval" or warrant of any kind.

So the entire New York Times take on the NSA intercepts is wrong on its face, and needn't even reach the question of whether an act of Congress (such as FISA) can override the president's residual, plenary powers as defined in Article II of the Constitution.

'Nuff said.

Hatched by Dafydd on this day, January 10, 2006, at the time of 5:43 PM

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The following hissed in response by: Alexandra von Maltzan

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UPDATE JAN 10TH: Article from WSJ Opinion Page, and an extensive post on the whole issue by the talented Dafydd @ Big Lizards.

The above hissed in response by: Alexandra von Maltzan [TypeKey Profile Page] at January 11, 2006 12:12 AM

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