The Federalist Society takes no position on particular legal or public policy initiatives. All expressions of opinion are those of the author or authors. We hope these and other briefing papers will help foster discussion and a further exchange regarding the important issues that will need to be addressed in the coming months.
Terrorist Surveillance and the Constitution
The Federalist Society for Law and Public Policy Studies is pleased to make a contribution to the current debate about the scope of the President's powers in wartime by publishing this monograph on the legal and constitutional issues implicated by NSA's global al Qaeda surveillance program. Although this surveillance program is important in its own right, the ongoing dialogue about its proper legal and policy parameters has become a surrogate for a broader discourse about the wartime constitutional balance among the Executive, Congress and the Judiciary. This issue has stimulated a heated debate, with the bulk of the academy and the media arguing that the President's actions violated both the 1978 Foreign Intelligence Surveillance Act and the Constitution. This viewpoint was vigorously presented in an ABA Resolution, dated February 13, 2006, and in the Letter of Scholars to Congress, dated January 9, 2006. Both of these products have been extensively referenced in congressional hearings on the subject, which commenced several weeks ago and are still ongoing. By contrast, the accompanying study by Andrew C. McCarthy, David B. Rivkin, Jr., and Lee A. Casey posits that the NSA's al Qaeda surveillance program does not run afoul of FISA and is fully within the ambit of the President's authority as the Commander-in-Chief. The ABA Resolution, Scholars' Letter, and McCarthy-Rivkin-Casey study are reproduced herein.
Customary International Law and State Patterns of Cooperation in the Use of Force in Response to Terrorism State practice and patterns of cooperation over the last 45 years have led to the development of rules of customary international law governing the use of force, in anticipatory self-defense, against terrorists and rogue state collaborators. Although the earlier general rules may have prohibited states from using force except in anticipation of an imminent attack, in more recent practice, the imminence standard has changed. States have initiated and cooperated in the use of force in self-defense to instances in which the possibility of an attack is not imminent, but merely expected. These actions are based on an assessment of the following factors: (1) the protection of nationals; (2) the probability of an attack; (3) the magnitude of potential harm; (4) the need to disrupt terrorist planning and activities; and (5) the need to eliminate safe havens. These rules have emerged with considerable cooperation from the states most actively engaged by the treat of terrorism.
Military Commissions Act of 2006: Striking the Right Balance
The Bush Administration’s Military Commissions Act of 2006 ("MCA"), put forward partially in response to the Hamdan v. Rumsfeld decision handed down by the Supreme Court in May 2006 and also to provide a more politically durable foundation for USG’s legal policies in the ongoing war on terror, fully comports with both the U.S. Constitution and international law – specifically, international law of armed conflict. After a vigorous debate on both sides of the political spectrum, large bi-partisan majorities in both the House and the Senate supported the enactment of this legislation. Significantly, instead of rubberstamping the Administration’s original legislative proposal, there was considerable give and take between the Congress and the President, with a particularly negotiation between the White House representatives and a group of Senators, including John Warner (R-VA), John McCain (R-AZ), and Lindsey Graham (R-NC).
Five Questions on NSA Surveillance
Below, two Federalist Society members (David B. Rivkin, Jr., partner in the Washington, D.C. office of Baker & Hostetler LLP, Contributing Editor to the National Interest and National Review magazines, and Member of the UN Subcommission on the Promotion and Protection of Human Rights and Robert Levy, Senior Fellow in Constitutional Studies at the Cato Institute) pose and then answer questions about the administration’s policy on domestic surveillance.
Unlawful Belligerency and its Implications Under International Law President Bush's Military Order of November 13 on the Detention, Treatment, and Trial of Certain Non-citizens in the War Against Terrorism ("November 13 Military Order"), instructing the Secretary of Defense to establish one or more "military commissions" for the trial of captured al Qaeda members, has generally been accepted, in light of the Supreme Court's 1942 decision in Ex parte Quirin, as legal under U.S. domestic law. Moreover, the use of such tribunals to process Osama bin Laden and his cohorts has received cautious endorsements from most commentators. However, a number of individuals, on both the left and the right, remain implacably opposed to the idea, and some legal scholars continue to argue that the use of such tribunals is unlawful, asserting that the rule and reasoning of Quirin have been overtaken by changes in the law that have taken place since that case was decided nearly sixty years ago.