December 20, 2005


A president can pull the trigger (John Yoo, December 20, 2005, LA Times)

Neither presidents nor Congress have ever acted under the belief that the Constitution requires a declaration of war before the U.S. can engage in military hostilities abroad. Although this nation has used force abroad more than 100 times, it has declared war only five times: the War of 1812, the Mexican-American and Spanish-American Wars, and World Wars I and II. Without declarations of war or any other congressional authorization, presidents have sent troops to fight Chinese Communists in Korea, to remove Manuel Noriega from power in Panama and to prevent human rights disasters in the Balkans. Other conflicts, such as the Persian Gulf War, received "authorization" from Congress but not declarations of war.

Critics of these wars want to upend this long practice by appeals to an "original understanding" of the Constitution. The Constitution, however, does not set out a clear process for starting war. Congress has the power to "declare war," but this clause allows Congress to establish the nation's legal status under international law. The framers wouldn't have equated "declaring" war with beginning a military conflict — indeed, in the 100 years before the Constitution, the British only once "declared" war at the start of a conflict.

Further, the Constitution specifies no step-by-step process to govern war-making, yet it is specific every other time it imposes shared power on the executive and legislative branches.

Why no strict war-making process? Because the framers understood that war would require the speed, decisiveness and secrecy that only the presidency could bring. "Energy in the executive," Alexander Hamilton argued in the Federalist Papers, "is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks."

And, he continued, "the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand."

Instead of specifying a legalistic process to begin war, the framers wisely created a fluid political process in which legislators would use their funding power to control war.

How about a recess appointment to O'Connor's seat for Professor Yoo?

Legal Analysis of the NSA Domestic Surveillance Program (Orin Kerr, 12/19/05, Volokh Conspiracy)

On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.

The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).

As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument -- and with dicta that seems to say that mode of transportation is not relevant.]

The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance.

Posted by Orrin Judd at December 20, 2005 12:27 PM

"The right of the people to be secure ... against unreasonable searches and seizures ..."
Warrantless searches are allowed under the 4th Amendment if they are reasonable, i.e. if there is "probable cause". Surely any international call or email to or from a known or suspected Al Qaeda member meets the probable cause requirement and is reasonable. Besides, isn't the covert interception of international communications the raison d'etre of the NSA?

Posted by: jd watson [TypeKey Profile Page] at December 20, 2005 2:00 PM


You have no idea who's at the number or whether they've done anything, how do you argue that anything is probable?

Posted by: oj at December 20, 2005 2:06 PM

O'Connor's resignation is not effective until a successor is confirmed. So no Yoo.

Posted by: Bob at December 20, 2005 2:35 PM

oj: As I understand it, they were monitoring numbers and email addresses that turned up on computers or other materials seized from terrorists. So these accounts have been in communication with terrorists, ergo probable cause.

Besides, this is not done for legal prosecution but for intelligence gathering. NSA intercepts would probably not be admissible in a court, and the government has always refused to present such evidence in court.There are also court decisions allowing even broader surveillance: "A Federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents ..." (NYT) November 7, 1982. I have also read that the government has the legal right to read all international mail, incoming or outgoing, with no probable cause requirement.

Your objection makes more sense against a program like Echelon, which is still ongoing, and which interecepts all international communications regardless of source or destination.

Posted by: jd watson [TypeKey Profile Page] at December 20, 2005 3:46 PM