15 December 2008

Thomas Tamm and the TSP, Part I: Why the TSP was illegal

This week, Newsweek features an interview with Thomas Tamm, a former Bush Department of Justice official who now confesses to being the leaker responsible for informing the New York Times’ James Risen and Eric Lichtblau about the so-called “Terrorist Surveillance Program” (TSP).

Tamm will doubtless be pilloried by right-wing editorialists, but in my view, his actions were courageous and highly commendable. Not only do I think that the TSP was illegal, I think it was obviously illegal--indeed, I think that its legality simply cannot be defended on any reasonable view of the American constitutional structure. My reasons for holding this opinion, however, are somewhat different from those usually propounded, and I’ve been meaning to blog about them for a long time, so I shall use this recent development as an excuse to address the issue. I’ve broken my discussion into three posts: this one sets out the basic argument for FISA’s illegality, the second responds to the two objections that might initially seem serious, and the third explains how this relates to Tamm’s actions.

To my mind, The only way in which the illegality of the programme can be made to seem at all questionable is by misconceiving the fundamental issues involved. I think that the best-known arguments against the legality of the TSP, set out in three letters sent to the House and Senate Intelligence Committees in 2006 by a group of eminent constitutional law scholars (here, here, and here), fall into this trap to some degree: although the letters make a number of good points, by framing the problem incorrectly they give the impression that the constitutional questions involved are much more complicated and contestable than is truly the case. The letters focus primarily on the allocation of war powers between Congress and the President; but there is really no need to enter into this question at all to show that the TSP was illegal. The war power, in fact, has practically nothing to do with the issue.

The crucial point to understand is that legislative regulation of telecommunications has been undertaken for more than a century in virtue of Congress’s power to regulate commerce, and it has been sustained at every juncture by the Supreme Court. It is settled law that that the means of telecommunication are instruments of commerce--a term which, as John Marshall remarked in the famous case of Gibbons v. Ogden, 9 Wheat. 1, 189-90 (1824), bears its full sense of “intercourse”, extending well beyond the mere exchange of goods. This principle underlies all the later cases concerning the channels of telegraph, telephone, and radio communication: Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1, 9 (1878); Western Union Telegraph Co. v. Texas, 105 U.S. 460, 464 (1881) (“A telegraph company occupies the same relation to commerce as a carrier of messages that a railroad company does as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself.”); Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 279 (1933); Fisher’s Blend Station v. State Tax Comm’n, 297 U.S. 650, 654-5 (1936) (citing Gibbons explicitly) (“Whether the transmission is effected by the aid of wires or through a perhaps less well understood medium, ‘the ether,’ is immaterial in the light of those practical considerations which have dictated the conclusion that the transmission of information interstate is a form of ‘intercourse,’ which is commerce.”); United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 549-50 (1944) (“transactions may be commerce [ . . . ] though they do not use common carriers or concern the flow of anything more tangible than electrons and information”). To reject the doctrine of these cases would require striking down as unconstitutional a vast swath of regulation: not only FISA, but the Federal Communications Act, the Communications Satellite Act, the Interstate Wire Act, and so on--a position which neither the Bush White House nor any of its apologists advanced.

But if telecommunications is commerce, then FISA--which, as it stood at the time of the TSP, protected the privacy of international telecommunications against the executive branch unless the executive complied with certain procedures--is in its essence a regulation of foreign commerce.

And the Constitution is quite explicit about the separation of powers as it affects the regulation of foreign commerce: here Congress has all the power, and the executive has none. Article I, §8, cl. 3, allots the authority in express terms. In the case of the war power, article II, §2, cl. 1’s designation of the President as “Commander in Chief of the Army and Navy of the United States” might be thought to give him some independent authority; here, however, the President does not even have a vague implication to raise against Congress's explicit grant of power. The executive branch cannot levy a tariff or prohibit any type of import or export on his sole authority. (In some of these cases, a treaty made by the President with the consent of the Senate can serve as well as a statute, but this is because treaties are themselves part of “the supreme Law of the Land”, art. VI, cl. 2; acting alone, however, the President cannot make law; as Justice Black remarked in the Steel Seizure Case, 343 U.S. 579, 587 (1952), “In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.”) It is easy to forget this fact, because in the twentieth century Congress has, for pragmatic reasons, delegated heavily to the executive in the spheres of trade policy, particularly when military goods are involved: but all these delegations exist at the suffrance of Congress, and cannot prevail over an express statutory command on a particular issue falling under the foreign commerce power.

It does not matter in the least whether (as defenders of the President maintened during the TSP controversy) following the dictates of FISA might interfere with the President’s military goals--even if those goals are appropriate ones, and even if, under Article II, the President can do some things not involving the regulation of foreign commerce in furtherance of those goals regardless of Congress’s objections. For where Congress has an exclusive power, it is under absolutely no obligation to exercise that power in the manner most convenient for the President’s goals or most likely to support him in the exercise of his own powers. It is as gross a constitutional error to say that Congress must regulate foreign commerce in such a way as not to impede the purposes of the President, qua supreme general, as it is to say that the President must use his pardoning power in such a way as not to impede the purposes of Congress, qua definer of federal crimes. It might not be wise for the President to pardon everyone convicted under a criminal statute, even if he thinks the statute iniquitous, but there is no legal question as to his authority to do so. Similarly, it might not be wise for Congress to regulate foreign commerce in a way that makes it difficult for him to effectively fight a war, even if it thinks other goals more important; but there is no legal question as to its authority to do so.

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