HH: And I’m glad to come back on a day where the continued assault by the judiciary on the national security continues. To discuss it, I’ve got the Smart Guys, John Eastman, professor of law at Chapman University Law School, my colleague there with whom I will be all day tomorrow, and Erwin Chemerinsky, professor of law at Duke University Law School. Erwin, welcome back. Erwin, this (laughing) this opinion is a joke, but go ahead. Defend it.
EC: Well, I think what this judge did was reject the continued assault on the Constitution by the Bush administration. I think this is actually, as a matter of law, an easy case. What the judge held was that the National Security Agency’s warrantless wiretapping violates the 4th Amendment requirements for a warrant. She however ruled in favor of the Bush administration, saying because of the State Secrets Doctrine, she couldn’t rule on whether the data mining violated the Constitution. The 4th Amendment is clear. The government can only engage in wiretapping or searches if there’s a warrant. There’s a federal statute that said there can only be wiretapping under two statutory provisions, and that’s it. If the President can do this, could the President just search anybody’s house without a warrant in the name of national security? Can the President suspend the 1st Amendment, or cancel elections in the name of national security? What’s the limit that you’re arguing for?
HH: John Eastman, I say it’s a joke, because I went right…I’ll go past the standing, the state secret stuff, the standing stuff is silly, too. But to go to part 5 of the opinion in the 4th Amendment, is conclusory. There’s no argument here. If it was a first year law student’s paper, it would be a failure.
JE: I agree, and Erwin, the 4th Amendment doesn’t say you have to have a warrant to conduct surveillance of enemy communications in a time of war. That’s what we’re talking about here. It says the right of the people to be secure in their houses, papers, persons and affects against unreasonable searches and seizures shall not be violated. The next clause says and no warrant shall issue but upon probable cause. It has never been the case that all searches conducted by government require a warrant. Some do, but it’s never been the case that the interception of enemy communications requires a warrant. That substitutes the courts for the president as commander in chief in direct violation of Article II of the Constitution, which specifically assigns that authority to the president, with good reason. The founders understood that you can’t be having the decision making in war, and the conduct of war, and operations of war, being made by committees in Congress, or worse, by the judiciary, which only has case by case matters that come before them. This is a tremendous intrusion on the powers of the president that the Constitution, and through the Constitution, the people of the United States, directly gave to the president.
HH: Erwin, she doesn’t even deal with the Foreign Intelligence Surveillance appeals court ruling on this matter. And that’s a superior court to her, though not, of course, controlling it, superior in dealing with it, and she never cites it. She doesn’t discuss it. They took it for granted in the Silberman opinion that the president could order this. I just want to…
EC: I disagree, and I think all three of us should agree, the Foreign Intelligence Surveillance Court has not yet ruled as to whether the National Security Agency’s warrantless wiretapping violates the Constitution, or the Foreign Intelligence Surveillance Act.
HH: But Erwin, that’s not what I said. I said that there is an opinion out there by the Appellate Court of that court that deals specifically, and reserves and assumes that the president has this power. And my point is, her opinion doesn’t even reference that. That’s dishonest, intellectually, to have written this opinion.
EC: I strongly disagree. That court did not decide the issue of whether or not the NSA warrantless wiretapping violated the Constitution, and violated the Foreign Intelligence Surveillance Act. There is no prior decision. The closest there is, is a Supreme Court case from 30 years ago, United States V. United States District Court, the Keith case, that said there can’t be warrrantless wiretapping for domestic security. It left open the question of whether there can be for foreign surveillance purposes. I think that the key here is just what she said. There isn’t authority under any existing law for the president to authorize warrantless wiretapping. This isn’t just a few people. So far as we know, millions of conversations were intercepted without a warrant, and this does violate the Constitution and federal statutes. And I think here, this is going to be upheld. I think there’s hard questions with regard to standing, and I agree with her. But I think on the 4th Amendment issue, I’d still like the two of you to answer, if the president can authorize this, can the president also authorize searches of people’s houses without needing to get a warrant? And if the president can suspend the 4th Amendment, could the president suspend the 1st Amendment, too, and impose prior restraints? Can the president cancel elections if he believes national security justifies it? What’s the limit that you’re imposing?
JE: Erwin, he’s not violating the 4th Amendment, when the 4th Amendment specifically allows for reasonable searches without a warrant. It’s always been the law, and you keep talking as if it’s clear that he’s violating law. There’s no case saying that it’s clear that he’s violating the law, either. The highest court to look at this, the FISA Court of Appeals, was so confident that it would be an intrusion on president’s authority, even if Congress intended to restrict the president this way, that the statute would be unconstitutional, not the president’s action. I agree with you that the court didn’t reach that as a holding, but it so clearly assumed it, because the Article II powers of the president were so well established in this arena, that the court could assume it. It’s not holding, because that wasn’t at issue there, but the rest of the holding turns on that assumption. And I think it’s a correct one.
HH: Now John, let me stick with you for a second, though. Again, I want to focus, so that my audience understands, Erwin’s got an argument. You’ve got the better argument. I agree with you. But when it comes to judges judging and opining, there is a minimum level of responsibility to confront the strongest arguments, and deal with them. In that instance, it would be the FISA Appeals Court, In Re Sealed Case, 2002, or Keith, but both. She does not do either. That’s what makes this such an assault on separation of powers itself. I just want your comments.
JE: That’s right. And you know, look. I’ve said in print before. One of the reasons that we have opinions from judges, rather than just raw statues, or raw executive orders, like we have from the other branches, is we expect a reasoned decision, and that means grappling with the arguments on the other side, and trying to make the case on why the arguments aren’t strong enough to prevail. This judge doesn’t do that in this case. And I think the FISA Court of Appeals argument granted its dicta. And I will agree with Erwin on that.
HH: I agree, yup.
JE: But it warranted consideration.
HH: Erwin, go ahead.
EC: I want to defend the appeal on two levels. One is procedurally. It’s a 43 page opinion, and I think that even if she had cited to the FISA court opinion, and said she disagrees with it, or it’s just dicta, both of you would be just as critical of what she said. We’re not really arguing about whether or not her opinion was well written. What we’re really arguing is the merits. And I want to focus on what John said, because if you take John’s view of the 4th Amendment, then the police really could come in at the direction of the president, and search anybody’s house, just by saying national security. John, Hugh and I both know that the 4th Amendment, as been interpreted, is requiring a warrant except for very specific exceptions as delineated by the Supreme Court. There is no exception for the president saying in the name of national security, millions of people can have their conversations intercepted without a warrant. There was a federal statute.
EC: The Foreign Intelligence Surveillance Act, that expressly says that all interception of conversations have to be the person to that statute, or Title III of the Omnibus Crime Control Act.
JE: And every president that has dealt with the Foreign Intelligence Surveillance Act has said the same thing. It cannot intrude on the powers that the president has directly from Article II. Are you suggesting, Erwin, that if President Roosevelt intercepted, as he did, communications between agents of the Nazi government, here in the United States, attempting to commit sabotage acts against the armed forces of the United States, and communications abroad, that he needed to go in and ask a court for a warrant before he did that? Because that’s what your argument amounts to. It’s never been the case the president needed to seek a court approval for the conduct of war. Interception of enemy communications in time of war is about as critical an exercise of presidential power as you get. We don’t have to run that by the courts for permission.
HH: Erwin Chemerinsky, John Eastman, together the Smart Guys, thanks. We’ll no doubt be talking later in the week about more fallout from this ridiculous decision, but one Democrats are applauding across the country, the Ned Lamont Democrats, the nutters, they’re all out there loving the fact that we’re blinding ourselves, or trying to.
End of interview.