Sunday, January 01, 2006

More NSA on Volokh

Professor Kerr links to several stories regarding Comey's dissent regarding the NSA program.

The more I think about this issue, the more I find that Kerr's analysis, and what the courts will eventually find, will be diametrically opposite.

To begin, Kerr finds the Fourth Amendment argument weak. I think this is flat wrong. Reading Truong, reading Sealed Case, and the progeny of FISA cases, it seems clear the courts believe that the President has broad powers for national security, but the discussion changes drastically in the context of criminal law. Indeed, it seems to me the whole discussion regarding "primary purpose" vis a vis "significant purpose" highlights this. While the president has broad power to protect the nation, once that power is aimed at domestic law enforcement, while still a vastly broad power, that power is clearly and constitutionally restricted by the Bill of Rights; the Constitution has changed the scope of the President's law enforcement power.

However, to the extent that FISA attempts to limit the President's powers regarding national security, I think the courts will find that it either doesn't apply to that scenario, or, to the extent that it tries to, is unconstutional. I think Curtiss-Wright supports this theory, as well as Sealed Case (particularly the dictum in Sealed Case, which has been the subject of massive debate). See also.

Let me be clear, Kerr's analysis is premiere and superior. Having clerked in a federal appeals court, knowing the way the Second Circuit in particular reviews these issues (as opposed to the Ninth), my instinct tells me the courts will go the Sealed Case dictum route because they can. I also think the main argument they will use to support the theory is that a power as important as this cannot ever be restricted by Congress, period. However, the power to surveil domestic activity for law enforcement has been restricted, just not by Congress, but by the Constitution itself, so any defendant subject to evidence obtained by this program has great suppression motions coming, i.e., Jose Padilla.

This analysis, which I think the DOJ expects to prevail, explains to me the DOJ's reluctance to allow Padilla to be treated as a commonplace defendant, but would rather he be treated as an enemy combatant. Otherwise, no evidence.

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