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Tuesday, February 14, 2006

NSA Spying and the AUMF

So we recently were given a moot court problem dealing with an NSA spying program. I was excited, wrote about half my brief (the half dealing with whether the AUMF grants the President power to execute the program), when the problem was changed. So my brief is basically worthless, and someone suggested I post it. So here it is. It's very rough, but mildly interesting--defining characteristics, I guess, of a blog post.

The facts, in relevant part, are that the spying program tracked all international IM conversations, then filtered it by computer for various terms, and then NSA agents decided which conversations were worth investigating. Petitioner was convicted of aiding a terrorist. The government "caught" Petitioner based on evidence gained through the program, and she challenged the evidence and everything that came from it as illegal such that the conviction should be overturned.

I. The Court should vacate the lower court's decision since the Authorization to Use Military Force does not abrogate the FISA requirements for the government's illegal surveillance program.

Petitioner's conviction in the instant case was based exclusively upon evidence obtained by the bulk surveillance program called FutureMouse, which logs all Instant Message (IM) conversations between users in the United States and overseas users. Stone Moot Ct. R. 11, 16. IM communication began in the early 1970's, and now attracts almost 100 million users. See James Altucher, MSN Plus AOL Is a Negative for Google, TheStreet.com, Sept. 15, 2005, http://www.thestreet.com/pf/markets/jamesaltucher/10242834.html. Under FutureMouse, every single IM conversation is logged, and a combination of computers and NSA personnel pick out the conversations that warrant further review and action. Stone Moot Ct. R. 16. There is no initial filter for suspected terrorists, and no warrant is ever sought for the surveillance, even though the Foreign Intelligence Surveillance Act (FISA) specifically bars electronic surveillance under such circumstances except when "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." 18 U.S.C. 1802(B). The government does not contest that FutureMouse violates FISA, admitting itself that the program is "warrantless," Stone Moot Ct. R. 14. Instead, it argues that both FISA is unconstitutional as applied to the President's conducting foreign intelligence surveillance (discussed infra), and that even without this exclusive authority, the 2001 Authorization to Use Military Force (AUMF) repealed the requirements of FISA when the President is deterring acts of international terrorism. Id. at 15.

The AUMF does not remedy the illegal surveillance program involved in the instant case. The AUMF authorizes the President to use all "necessary and appropriate force" against the "nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." 115 Stat. 224 § (2)(a). There are, therefore, two separate constraints on the scope of power the President is authorized to use—the force must be "necessary and appropriate" and it must be against the parties included in the authorization.

The FutureMouse program fails on both of these constraints. There is no evidence on the record that Ms. Jones falls under any of these categories, a fact that was even admitted to by the government in the instant case, Stone Moot Ct. R. 14, so whatever surveillance power the AUMF gives the President it does not, by its terms, reach to U.S. citizens such as Ms. Jones. It is also clear that this Court’s prior interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) does not extend "necessary and appropriate" force to include such an extremely broad surveillance program as FutureMouse. The construction of the AUMF the government seeks in this case is outside the scope of the Hamdi holding, in conflict with numerous traditional canons of construction, and would give the government the kind of "blank check" this Court has specifically denied it has. Hamdi, 542 U.S. at [XX]. Since the AUMF does not repeal FISA's requirements, it was illegal for the government to use the warrantless surveillance evidence against Ms. Jones in the lower court and her motion in limine to exclude the evidence gained through illegal surveillance should have been granted. Her conviction should therefore be vacated with instructions to exclude the illegally gained evidence.

A. There is no evidence on the record that Ms. Jones is a party for whom the AUMF would abrogate FISA's warrant requirement.


The most obvious, and perhaps most important, limit on the authorization given to the President under the AUMF is the persons against which it authorizes him to use force. The AUMF requires a nexus between military action and "nations, organizations, or persons" whom the President determines have certain specified connections to the September 11 attacks. This nexus requirement is not accidental; it was pared down from the President’s initial request for authority to "deter and pre-empt any future acts of terrorism or aggression against the United States," without regard to the entities involved. See David Abramowitz, The President, the Congress, and Use of Force: Legal and Political Considerations in Authorizing Use of Force Against International Terrorism, 43 Harv. Int'l L.J. 71, 73 (2002) (quoting Draft Joint Resolution Authorizing the Use of Force). Negotiations between Congress and the White House produced the language of the AUMF limiting the authorization to those connected with the September 11th attacks. See, e.g., John Lancaster & Helen Dewar, Congress Clears Use of Force, $40 Billion in Emergency Aid, Wash. Post, Sept. 15, 2001, at A4. This nexus limitation was a crucial limit on the extent of power, and was even considered by many members of Congress to be the sole limit on the President’s authorization to use force. Curtis A. Bradley and Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2079 (2005) (citing floor debates).

The interpretive question this important nexus requirement raises is what relationship a "nation[], organization[], or person[]" must have to the "terrorist attacks that occurred on September 11, 2001" in order to fall under the AUMF’s grant of authority. The grant surely extends to the members of al Qaeda who participated in the September 11th attack, and probably to members of al Qaeda who either did not participate in the attack or have since joined al Qaeda. Bradley and Goldsmith, supra, at 2109. Under the most broad reading of the grant, all it requires is 1) some organizational relationship between the group to which a person belongs and al Qaeda, and 2) a common goal for some future attack against the United States. There is no evidence on the record in the instant case to satisfy even this extremely broad reading of the nexus requirement.

There is no evidence that either Ms. Jones or Millat Iqbal are members of any terrorist organization, let alone an organization tied to al Qaeda and/or the September 11th attacks. Even Ryan Topps, the representative of the Keepers of the Eternal and Victorious Islamic Nation (KEVIN), to whom Ms. Jones provided documents has not been shown to have any affiliation with al Qaeda. Stone Moot Ct. R. 11. The government has not produced one scintilla of evidence that would suggest that the nexus requirement for the AUMF to have authorized the warrantless surveillance has been satisfied. It has even admitted that it had no prior reason to suspect Ms. Jones for any affiliation with terrorism or any other kind of wrongdoing. Id. at 14. This means that whatever effect the AUMF has in abrogating the requirements of FISA for surveillance of those covered by its terms (itself a dubious proposition, discussed infra), an IM conversation between two persons with no connection at all to al Qaeda or the September 11th attacks is not included in that abrogation. The surveillance against Ms. Jones was illegal, and the evidence obtained through the surveillance as well as the additional evidence against her found as a result of the illegal surveillance must also be excluded as "the fruit of a poisonous tree." Mapp v. Ohio, 367 U.S. 643 (1961).

B. The FutureMouse program is outside the limits this Court put on the scope of the AUMF in Hamdi.


Apart from whether Ms. Jones is included within the group of persons against whom the AUMF authorizes the President to use force is the question of whether the FutureMouse program is a "necessary and appropriate" use of force. This Court’s prior interpretation of the AUMF in Hamdi v. Rumsfeld suggests that the FutureMouse program is not a "fundamental incident of making war" such that it is not included within the AUMF's grant of authority. Hamdi is quite careful in the extent of power it read the AUMF to grant, and the authority the government claims in the instant case with its FutureMouse surveillance is outside that scope.

Hamdi dealt with whether the AUMF authorized the detention of enemy combatants. A plurality of the Court held that the President did have power to detain the combatants, but limited its holding to members of the Taliban during the time of hostilities with Afghanistan. Hamdi, 542 U.S. at 518. The Court did not require that the resolution have enumerated powers that Congress meant to allow the President to exercise; since "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war," Congress "clearly and unmistakably authorized detention in the narrow circumstances" facing the Court. Id. at 519. However, outside this very limited holding of the plurality to individuals who were "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there," Id. at 516, there are a myriad of concerns raised by the opinions that militate against finding the FutureMouse program within the authority granted by the AUMF.

To begin, the opinions in Hamdi are indeed somewhat confusing. Justice O'Connor writing for herself, Chief Justice Rehnquist and Justices Kennedy and Breyer held that the AUMF granted the President authority to detain enemy combatants, but held that due process required that the combatants be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Hamdi, 542 U.S. at [__]. Justices Souter, joined by Justice Ginsburg concurred, finding that the AUMF did not warrant the detention, but agreed that Hamdi should be granted a hearing to prove he is not an enemy combatant. Justice Scalia, joined by Justice Stevens, dissented on the grounds that the AUMF did not suspend the writ of habeas corpus. Lastly, Justice Thomas dissented on all restrictions on the President's actions, finding them constitutionally committed to his keeping. In relevant part, therefore, a five justice plurality consisting of Chief Justice Rehnquist and Justices O’Connor, Kennedy, Breyer, and Thomas found that the AUMF authorized the President to detain Mr. Hamdi.

The principal opinion authored by Justice O’Connor is extremely narrow in the authority it grants the President. She calls the facts presented in the case "narrow circumstances," Hamdi, 542 at 509, 519, presenting a "narrow question," Id. at 516, regarding individuals in a "limited category," Id. at 518. The opinion expressed doubt about its holding being sustained in the event of an indefinite or perpetual war, Id. at 521 ("If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel."), and stressed that its holding was based on Mr. Hamdi being detained during active hostilities, against the Taliban. Id. at [__]. Justice O’Connor specifically eschewed any finding of the kind of circumscribed role of the courts in the protection of individuals during war time that Justice Thomas defended in dissent. Thus, all that can really be said about the amount of deference the Hamdi plurality grants to the President in interpreting the AUMF is that uses of force need not be specifically enumerated in the authorization.

C. Traditional canons of construction militate against construing the AUMF broadly enough to include the FutureMouse program.

Multiple canons of statutory construction suggest that the very general terms of the AUMF should not be read to unnecessarily conflict with the specific terms of FISA. When there is a conflict between two statutes, this Court has held that the "carefully drawn" statutes prevail over general statutes. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992). Congress has directly and specifically spoken to the precise question of domestic warrantless wiretapping during wartime, and should not be considered to implicitly have repealed itself. Such a repeal by implication has historically only been established by "overwhelming evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 137 (2001), and "the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable," id. at 141-142. The AUMF and FISA are not irreconcilable; the AUMF should not be read as implicitly repealing FISA’s warrant requirement.

Statutes should, moreover, be read to avoid grave constitutional concerns. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). For this reason, the Fourth Amendment privacy issues raised by this case militate against a broad construction. This Court’s decision in Kent v. Dulles, 357 U.S. 116 (1958) is instructive on this point. The 1926 passport statute authorizes the President to determine the rules by which passports are granted and issued. See 22 U.S.C. S 211a (2000). The Court in Kent refused to construe the passport statute so broad as to grant the President power to withhold passports on grounds of political affiliation. The Court "hesitate[d] to find in this broad generalized power [over passports] an authority to trench so heavily on the rights of the citizen," and thus "construe[d] narrowly all delegated powers that curtail or dilute” fundamental rights." Kent, 357 U.S. at 129.

Comparing two World War II-era decisions further shows this Court has historically avoided reading statutory grants so broad when faced with questions of the liberty of non-combatants. In Ex parte Endo, 323 U.S. 81 (1943), the Court read a congressional authorization to fall short of authorizing the President to detain U.S. citizens of Japanese heritage. Even during war, the President would have to identify clear statutory authorization for any such detention, that although constitutional, see Korematsu v United States, 323 US 214 (1943) (decided the same day as Endo), approached the line of constitutionality. According to the Court, "[i]n interpreting a wartime measure we must assume that their purpose was to allow for the greatest possible accommodation between those liberties and the exigencies of war." Endo, 323 at 300; see also Duncan v. Kahanamoku, 327 U.S. 304, 314-16 (1946). Conversely, in Ex parte Quirin, 317 U.S. 1 (1942), the Court concluded in the absence of a clear statement that the U.S. citizen combatant could be subject to a military trial in the United States. Id. at 44.

This juxtaposition shows the importance of the nature of the individual in this Court’s construction of the statutory grant. Whereas statutory grants to the President imply deference on treatment of combatants, the invasion on the rights of regular Americans does not warrant such deference. If the President is going to be authorized by statute to institute such vast surveillance on potentially every IM user in the country, this Court should require a clear statement from Congress as it has in the past. It is quite clear that Congress would not authorize such a program, evidenced by its refusal to adopt legislation accomplishing the same since the passage of the AUMF. See Dan Eggen, 2003 Draft Legislation Covered Eavesdropping, Wash. Post, Saturday, January 28, 2006, Page A2. This Court should not presume as much.

This approach to construing the AUMF fits the Hamdi plurality nicely into the Court’s prior war power cases. Justice Souter’s concurrence found that the prohibition in 18 U.S.C. § 4001(a) of detention of U.S. citizens "except pursuant to an Act of Congress" required a clear congressional statement that was not satisfied by the AUMF, Hamdi, 542 U.S. at 544, but the plurality relied on historical practice to determined that the AUMF was an "explicit congressional authorization" to satisfy S 4001(a). Id. at 516-17. Mr. Hamdi’s status as a combatant warranted, despite Justice Souter’s concurrence, a more broad reading of the AUMF due to his status as a combatant. Non-combatants, per Endo, do not warrant such a broad reading in the absence of a more clear statement. These historical principles, combined with the status of Ms. Jones and this Court’s interpretation in Hamdi do not warrant the construction of the AUMF the Second Circuit awarded it.

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