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Article Excerpt
NOTE CONTENTS
INTRODUCTION I. WARRANTS, WIRETAPS, AND WAR POWERS: A TRADITIONAL STATUTORY ANALYSIS A. Statutory Arguments in Favor of the NSA Surveillance Program B. Statutory Arguments Against the NSA Surveillance Program II. FRAMEWORKS AND AUTHORIZATIONS: A JURISPRUDENTIAL ANALYSIS A. Why Context-Specific Canons? B. The War Powers Cases III. THE CANONS OF WAR A. Canon I: An AUMF Does Not Supersede Specific Legal Frameworks Absent Specific Legislative Instructions B. Canon II: AUMFs Empower the "Fundamental Incidents of Waging War' but Do Not Otherwise Repeal Framework Statutes C. Canon III: An AUMF Should Be Read To Anticipate and Fulfill Provisos D. Canon IV: An AUMF Should Be Interpreted Both To Avoid Infringing on the President's Authority To Dictate the Tactical Essence of War and To Distinguish Between Actions Against Protected and Nonprotected Classes E. Canon V: An AUMF Is Limited by International Law Integrated into Framework Statutes IV. THE CANONS APPLIED CONCLUSION APPENDIX
INTRODUCTION
Americans expect their government to do everything in its power under our laws and Constitution to protect them and their civil liberties. That is exactly what we are doing. And so far, we have been successful in preventing another attack on our soil. (1)
In a May 13, 2006, radio address, President Bush claimed that it is the President's privilege and duty to exercise the Full extent of his powers to protect the United States from another terrorist attack. A broad array of lawyers, academics, and retired judges has argued that the Bush Administration has pushed the envelope of executive war power, (2) and the Supreme Court has checked some of the administration's most expansive assertions of authority. (3) Nevertheless, the White House has continued to attract public criticism for taking broad domestic action, (4) even as it claims insulation from the checking functions of Congress, (5) the courts, (6) and even internal administrative oversight. (7)
The debate over the President's power to confront the threat of terrorism rests between clashing constitutional authorities. Scholars and commentators have disputed the weight of First, Fourth, and Fifth Amendment protections as balanced against the President's executive powers, and the Justice Department finishes nearly every brief and legal memorandum concerning national security with the argument that the government's actions are, in any case, authorized under the President's power as Commander in Chief. (8)
Outside the confines of partisan absolutism, determining the scope of executive war power is a delicate balancing act. Contrasting constitutional prerogatives must be evaluated while integrating framework statutes, executive orders, and quasi-constitutional custom. The Supreme Court's preferred abacus is the elegant three-part framework described by Justice Jackson in his concurrence to Youngstown Sheet & Tube Co. v. Sawyer. (9) When the President and Congress act in concert, the action harnesses the power of both branches and is unlikely to violate the principle of separation of powers. When Congress has failed either to authorize or to deny authority, the action lurks in a "zone of twilight" of questionable power. When the President and Congress act in opposition, the President's power is "at its lowest ebb," and the action raises conspicuous concerns over the separation of powers. (10)
Therein lies the rub. Justice Jackson wrote soon after the tremendous growth of the executive during the New Deal and World War II, but the scope of legislation expanded dramatically in subsequent decades. Congress waged a counteroffensive in the campaign over interbranch supremacy by legislating extensively in the fields of foreign relations and war powers. Particularly in the post-Watergate era, Congress filled nearly every shadowy corner of the zone of twilight with its own imprimatur. (11) That is not to say that Congress placed a relentless series of checks on the executive. Rather, Congress strove to establish ground rules, providing a limiting framework such as the War Powers Resolution (12) for each effusive authorization like the Patriot Act. (13) This leaves Jackson's second category essentially a dead letter. (14) The most sensitive questions concerning the effective distribution of governmental powers and the range of permissible executive action are therefore problems of statutory interpretation. The question becomes more complicated still when successive Congresses act in apparent opposition. While recent executives have consistently pushed to expand their authority, (15) shifting patterns of political allegiance between Congress and the President yield a hodgepodge of mandates and restraints. (16) Whether an action falls into Jackson's first or third category requires one to parse the complete legislative scheme.
This question is most pointed in connection with the execution of authorized war powers. Presidential power in this area is simultaneously subject to enormously broad delegations and exacting statutory limitations, torn between clashing constitutional values regarding the proper balance between branches. On one side lie authorizations for the use of military force (AUMFs), statutes empowering the President to "introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated." (17) On the other side lie framework statutes, enactments defining the mechanisms and boundaries of the execution of those war powers. Nevertheless, when faced with a conflict between an authorization for the use of military force and a preexisting framework, the Supreme Court must determine the net authorization, synthesizing those statutes while effectuating the underlying constitutional, structural, and historical concerns.
The standard means for resolving statutory ambiguity and conflict is to invoke the canons of statutory interpretation, long-established rules of statutory construction. These "'off-the-rack,' gap-filling rules" provide a predictable means to transmute facially unclear statutory text into legal rules that can be applied to a case at bar. (18) In the realm of war powers, however, the traditional canons have played out to a stalemate, with multiple canons pointing toward opposite results. To break this deadlock, I will elaborate new, context-specific canons, rules of statutory construction that address the unique concerns of this field, including the exigencies of wartime and the institutional dynamics that play out as each branch attempts to play a role in managing armed conflict. (19) Such context-specific canons have been developed extensively in the field of Indian law, (20) but their usefulness in the wider field of statutory interpretation has not previously been recognized. This Note builds the "canons of war" on a foundation of past judicial challenges to the powers granted by AUMFs and supplements them with original arguments balancing a dynamic vision of congressional intent with the government's shared desire for victory.
Part I demonstrates the inadequacy of the traditional canons by laying out a concrete and unresolved clash over AUMF interpretation: the debate over the legality of the National Security Agency's (NSA) warrantless wiretap program. Part II explains how context-specific canons can integrate constitutional, structural, and historical concerns to resolve this deadlock and ensure predictable and constitutionally appropriate interpretation. This Part then lays out the set of past judicial decisions challenging authority under an AUMF, assessing trends and means of analysis. Part III builds on these decisions, synthesizing them along with the institutional dynamics that underpin war powers legislation, and develops a set of canons to guide the executive and judiciary and to allow legislative anticipation of an AUMF's effect. This Part also applies the canons to the wiretapping controversy to demonstrate their real-world efficacy. Finally, Part IV applies the canons to a series of graduated examples to demonstrate their value within and beyond the dispute over NSA wiretapping.
I. WARRANTS, WIRETAPS, AND WAR POWERS: A TRADITIONAL STATUTORY ANALYSIS
On December 16, 2005, a front-page article in the New York Times began: "Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying...." (21) The story detailed a system under which the NSA monitored the phone calls of "up to 500 people in the United States at any given time" without warrants from the Foreign Intelligence Surveillance Court (FISC) (22) established under the Foreign Intelligence Surveillance Act (FISA). (23)
The story also laid out the skeleton of the Bush Administration's legal argument that the President possessed the authority to carry out the program. According to Bush Administration lawyers, "the Congressional resolution on the campaign against terrorism provided ample authorization" for a broad monitoring system. (24) Moreover, the article referenced the government's supplemental brief in In re Sealed Case, the only case to ever reach the Foreign Intelligence Surveillance Court of Review (FISCR), in which the Department of Justice asserted 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." (25)
The NSA program, sitting at the intersection of the September 11 AUMF and FISA, provides an ideal setting to analyze conflicts between authorizing and restricting war powers statutes. Arguments based on traditional statutory interpretation proliferate on both sides, but in this unique context each statutory presumption rests on deeper constitutional commitments. The AUMF/FISA case study fleshes out the array of canons that arise in the interpretation of war powers statutes and demonstrates the need for context-based interpretation to resolve the inevitable and intractable clash of traditional canons.
A. Statutory Arguments in Favor of the NSA Surveillance Program
The government issued its first legal response on December 22, only six days after the initial disclosure, in a letter from the Department of Justice (DOJ) to the chairmen and ranking members of the House and Senate Select Committees on Intelligence. (26) After stressing previous briefings to "Leaders of the Congress" and the necessity of the program, the DOJ letter leads with the Article II argument that the President possesses inherent authority to wiretap. Despite the simple appeal of that argument, the bulk of the letter is dedicated to the argument that Congress authorized the program as part of the post-September 11 AUMF, relying on numerous canon-based arguments to support its statutory construction. The validity of this argument turns on how to interpret the scope of the post-September 11 AUMF. The text of the authorization reads in relevant part:
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. (27)
The DOJ letter argues that the more recently enacted AUMF now governs the statutory field of wiretapping previously occupied by FISA. This assertion relies on the traditional argument that the latest expression of the sovereign will governs between enactments of equivalent weight: lex posterior derogat legi priori. (28) Relying on a purely textualist argument, the letter asserts that "all necessary and appropriate force" surely includes wiretapping, without any congressional restriction on its execution. (29)
The DOJ letter next argues that the Supreme Court's decision in Hamdi v. Rumsfeld buttresses this interpretation. Hamdi ruled that the AUMF authorized a "fundamental incident of waging war," (30) but did not address the question of whether domestic wiretapping is an essential aspect of war making. However, the letter indirectly asserts that Congress is presumed to legislate with knowledge of the historical circumstances of similar actions taken under past declarations of war and AUMFs. This is an application of the in pari materia rule, whereby similar language enacted with a similar legislative purpose is interpreted to have a comparable meaning, even across statutes. (31) While not taken in haec verba--in identical words--from any past AUMF, (32) the language of the post-September 11 AUMF is, if anything, broader than past authorizations. (33)
Even if the AUMF did not rid the legislative field of FISA, the DOJ letter argues that the breadth of the implied authorization activates a specific override provision. FISA states that "[a] person is guilty of an offense if he intentionally engages in electronic surveillance under color of law except as authorized by statute." (34) According to the DOJ, the post-September 11 AUMF is a statute that, if understood to permit wiretaps, conforms with FISA's structure without requiring repeal. (35)
Finally, the DOJ letter stakes out the position that the complete statutory scheme--FISA and the AUMF--must be construed not to conflict with the President's inherent authority to wiretap under the Commander-in-Chief Clause. (36) This argument utilizes the constitutional avoidance canon, which requires that "when an Act of Congress raises 'a serious doubt' as to its constitutionality, '[a] [c]ourt will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.'" (37) This argument, of course, circles back to the initial claim that the President possesses some inherent authority to wiretap.
The DOJ letter was followed on January 19, 2006, by a formal whitepaper that presents a few additional arguments that merit discussion, along with a fuller explanation of the previous arguments. (38) First, the whitepaper contends that principles of statutory construction dictate that "congressional enactments are to be broadly construed where they indicate support for authority long asserted and exercised by the Executive Branch." (39) Such logic would expand further on Dames & Moore v. Regan's placement of congressional acquiescence in the first Youngstown category (40) and would require the hefty assumption that Congress legislates with knowledge of the statutory landscape and integrates past interpretations when it reauthorizes a statute. (41) Finally, the whitepaper suggests that when Congress delegates authority to the President, the delegation ought to be read as broadly as possible in order to maximize executive flexibility. (42) Given the broad authority and flexibility presumed to be held by a military commander, this deference argument can be viewed as an elaboration on constitutional avoidance of the Commander in Chief authority.
B. Statutory Arguments Against the NSA Surveillance Program
Opponents of the program launched their first legal salvo in an open letter to congressional leaders and the chief judge of the FISC on January 9, 2006. (43) Signed by fourteen scholars of constitutional law and former government officials, including conservatives such as Curtis Bradley and Richard Epstein, the experts' letter lays out a formal refutation of the DOJ's December 22 letter. After the release of the January 19 whitepaper, a response came from an even more surprising source: David S. Kris, a former associate deputy attorney general who oversaw national security issues--including FISA--from 2000 to 2003, released a refutation of the Justice Department's detailed position. (44) The Kris memorandum primarily elaborates a forceful textual analysis, looking to the exact terms of FISA as they have been applied by the Justice Department since the Act's passage. Those arguments are less relevant here, as they address the intricacies of FISA rather than its interaction with the AUMF.
The experts' letter dedicates half of its text to refuting the applicability of the canons cited by the Justice Department and half to advancing new statutory arguments. The first and most important argument demands that the specific words of a framework statute must govern over the general authorization found in an AUMF, regardless of the relative date of passage. (45) This comports with the general canon that the specific governs the general or, in other words, that "[s]pecific provisions targeting a particular issue apply instead of provisions more generally covering the issue." (46) In this case, the canon suggests that FISA's series of specific pronouncements--in particular the provision governing which laws may authorize wiretaps (47)--remain in force over the AUMF's exceedingly vague authorization. Moreover, the experts claim that the proviso allowing electronic surveillance without a warrant for fifteen days following a declaration of war (48) governs any subsequent AUMF, since the provision anticipates precisely such authorizations. Thus this canon runs counter to the canon favoring the most recent enactment, the lex posterior canon described above.
Second, the experts' letter stresses that interpreting an AUMF to overcome framework statutes designed to cabin executive power would implicitly repeal the prior congressional enactment, sub silentio. (49) The Supreme Court has had a long-standing policy strongly disfavoring such repeals by implication, (50) and in recent cases has required absolute irreconcilability. (51) Thus, the scholars would discount the relevance of historical powers accompanying an AUMF when Congress has moved specifically and comprehensively to regulate the field; the canon against implied repeals clashes directly with in pari materia interpretation of successive AUMFs whose dates of passage bracket the passage of a specific regulation. (52)
Finally, the experts argue that the canon in favor of constitutional avoidance cuts against, rather than in favor of, the program's legality. The experts assert that, rather than infringing on the President's power as Commander in Chief, the NSA wiretap program comes too close to violating the Fourth Amendment. (53) Therefore the statutes at play should be interpreted to avoid the difficult constitutional question, holding that Congress at no time authorized the surveillance. Constitutional avoidance concerning individual rights is a complex tool for the interpretation of AUMFs. Different framework statutes protect different constitutional interests, (54) and the power of the canon will vary depending on whether it is used to prevent a true constitutional collision or simply to avoid answering a constitutional question.
The Kris memorandum presents one last canon-based argument. In refuting the government's argument that the "other statute" escape clause in FISA's criminal penalties provision allows electronic surveillance to be authorized by any subsequent statute, Kris describes in all but name the canon that provisos--qualifications, conditions, and loopholes--should be interpreted narrowly. (55) Such escape clauses will be particularly important in interpreting AUMFs, as arguments for authority will often utilize them as hooks to secure exceptions. (56) In contrast to the government's aim to read AUMFs reasonably to anticipate provisos, Kris would narrow both the scope of the proviso and the range of statutes that might trigger it.
As this controversy demonstrates, traditional canons fail to resolve the clash over the NSA's authority to execute the warrantless wiretap program. Congress has been unable to enact a permanent legislative fix, (57) leaving the controversy unresolved after nearly two years of public scrutiny. (58) Thus there is a demonstrable need for a new tool to determine the proper interpretation of the governing statutory regime. The context-specific canons of statutory interpretation elaborated below will allow those interpreting war powers legislation to resolve statutory conflicts and will provide a clearer understanding of the powers granted or withheld by future legislation.
II. FRAMEWORKS AND AUTHORIZATIONS: A JURISPRUDENTIAL ANALYSIS
The struggle over warrantless wiretaps is merely a recent example in...
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