The canons of war.

• Author: Freeman, Daniel J.

NOTE CONTENTS INTRODUCTION I. WARRANTS, WIRETAPS, AND WAR POWERS: A TRADITIONAL STATUTORY ANALYSIS A. Statutory Arguments in Favor of the NSA Surveillance Program B. Statutory Arguments Against the NSA Surveillance Program II. FRAMEWORKS AND AUTHORIZATIONS: A JURISPRUDENTIAL ANALYSIS A. Why Context-Specific Canons? B. The War Powers Cases III. THE CANONS OF WAR A. Canon I: An AUMF Does Not Supersede Specific Legal Frameworks Absent Specific Legislative Instructions B. Canon II: AUMFs Empower the "Fundamental Incidents of Waging War' but Do Not Otherwise Repeal Framework Statutes C. Canon III: An AUMF Should Be Read To Anticipate and Fulfill Provisos D. Canon IV: An AUMF Should Be Interpreted Both To Avoid Infringing on the President's Authority To Dictate the Tactical Essence of War and To Distinguish Between Actions Against Protected and Nonprotected Classes E. Canon V: An AUMF Is Limited by International Law Integrated into Framework Statutes IV. THE CANONS APPLIED CONCLUSION APPENDIX INTRODUCTION

Americans expect their government to do everything in its power under our laws and Constitution to protect them and their civil liberties. That is exactly what we are doing. And so far, we have been successful in preventing another attack on our soil. (1) In a May 13, 2006, radio address, President Bush claimed that it is the President's privilege and duty to exercise the Full extent of his powers to protect the United States from another terrorist attack. A broad array of lawyers, academics, and retired judges has argued that the Bush Administration has pushed the envelope of executive war power, (2) and the Supreme Court has checked some of the administration's most expansive assertions of authority. (3) Nevertheless, the White House has continued to attract public criticism for taking broad domestic action, (4) even as it claims insulation from the checking functions of Congress, (5) the courts, (6) and even internal administrative oversight. (7)

The debate over the President's power to confront the threat of terrorism rests between clashing constitutional authorities. Scholars and commentators have disputed the weight of First, Fourth, and Fifth Amendment protections as balanced against the President's executive powers, and the Justice Department finishes nearly every brief and legal memorandum concerning national security with the argument that the government's actions are, in any case, authorized under the President's power as Commander in Chief. (8)

Outside the confines of partisan absolutism, determining the scope of executive war power is a delicate balancing act. Contrasting constitutional prerogatives must be evaluated while integrating framework statutes, executive orders, and quasi-constitutional custom. The Supreme Court's preferred abacus is the elegant three-part framework described by Justice Jackson in his concurrence to Youngstown Sheet & Tube Co. v. Sawyer. (9) When the President and Congress act in concert, the action harnesses the power of both branches and is unlikely to violate the principle of separation of powers. When Congress has failed either to authorize or to deny authority, the action lurks in a "zone of twilight" of questionable power. When the President and Congress act in opposition, the President's power is "at its lowest ebb," and the action raises conspicuous concerns over the separation of powers. (10)

Therein lies the rub. Justice Jackson wrote soon after the tremendous growth of the executive during the New Deal and World War II, but the scope of legislation expanded dramatically in subsequent decades. Congress waged a counteroffensive in the campaign over interbranch supremacy by legislating extensively in the fields of foreign relations and war powers. Particularly in the post-Watergate era, Congress filled nearly every shadowy corner of the zone of twilight with its own imprimatur. (11) That is not to say that Congress placed a relentless series of checks on the executive. Rather, Congress strove to establish ground rules, providing a limiting framework such as the War Powers Resolution (12) for each effusive authorization like the Patriot Act. (13) This leaves Jackson's second category essentially a dead letter. (14) The most sensitive questions concerning the effective distribution of governmental powers and the range of permissible executive action are therefore problems of statutory interpretation. The question becomes more complicated still when successive Congresses act in apparent opposition. While recent executives have consistently pushed to expand their authority, (15) shifting patterns of political allegiance between Congress and the President yield a hodgepodge of mandates and restraints. (16) Whether an action falls into Jackson's first or third category requires one to parse the complete legislative scheme.

This question is most pointed in connection with the execution of authorized war powers. Presidential power in this area is simultaneously subject to enormously broad delegations and exacting statutory limitations, torn between clashing constitutional values regarding the proper balance between branches. On one side lie authorizations for the use of military force (AUMFs), statutes empowering the President to "introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated." (17) On the other side lie framework statutes, enactments defining the mechanisms and boundaries of the execution of those war powers. Nevertheless, when faced with a conflict between an authorization for the use of military force and a preexisting framework, the Supreme Court must determine the net authorization, synthesizing those statutes while effectuating the underlying constitutional, structural, and historical concerns.

The standard means for resolving statutory ambiguity and conflict is to invoke the canons of statutory interpretation, long-established rules of statutory construction. These "'off-the-rack,' gap-filling rules" provide a predictable means to transmute facially unclear statutory text into legal rules that can be applied to a case at bar. (18) In the realm of war powers, however, the traditional canons have played out to a stalemate, with multiple canons pointing toward opposite results. To break this deadlock, I will elaborate new, context-specific canons, rules of statutory construction that address the unique concerns of this field, including the exigencies of wartime and the institutional dynamics that play out as each branch attempts to play a role in managing armed conflict. (19) Such context-specific canons have been developed extensively in the field of Indian law, (20) but their usefulness in the wider field of statutory interpretation has not previously been recognized. This Note builds the "canons of war" on a foundation of past judicial challenges to the powers granted by AUMFs and supplements them with original arguments balancing a dynamic vision of congressional intent with the government's shared desire for victory.

Part I demonstrates the inadequacy of the traditional canons by laying out a concrete and unresolved clash over AUMF interpretation: the debate over the legality of the National Security Agency's (NSA) warrantless wiretap program. Part II explains how context-specific canons can integrate constitutional, structural, and historical concerns to resolve this deadlock and ensure predictable and constitutionally appropriate interpretation. This Part then lays out the set of past judicial decisions challenging authority under an AUMF, assessing trends and means of analysis. Part III builds on these decisions, synthesizing them along with the institutional dynamics that underpin war powers legislation, and develops a set of canons to guide the executive and judiciary and to allow legislative anticipation of an AUMF's effect. This Part also applies the canons to the wiretapping controversy to demonstrate their real-world efficacy. Finally, Part IV applies the canons to a series of graduated examples to demonstrate their value within and beyond the dispute over NSA wiretapping.

1. WARRANTS, WIRETAPS, AND WAR POWERS: A TRADITIONAL STATUTORY ANALYSIS

   On December 16, 2005, a front-page article in the New York Times began: "Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying...." (21) The story detailed a system under which the NSA monitored the phone calls of "up to 500 people in the United States at any given time" without warrants from the Foreign Intelligence Surveillance Court (FISC) (22) established under the Foreign Intelligence Surveillance Act (FISA). (23)

   The story also laid out the skeleton of the Bush Administration's legal argument that the President possessed the authority to carry out the program. According to Bush Administration lawyers, "the Congressional resolution on the campaign against terrorism provided ample authorization" for a broad monitoring system. (24) Moreover, the article referenced the government's supplemental brief in In re Sealed Case, the only case to ever reach the Foreign Intelligence Surveillance Court of Review (FISCR), in which the Department of Justice asserted that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority." (25)

   The NSA program, sitting at the intersection of the September 11 AUMF and FISA, provides an ideal setting to analyze conflicts between authorizing and restricting war powers statutes. Arguments based on traditional statutory interpretation proliferate on both sides, but in this unique context each...