Ten Years after 9/11, Inherent Authority Dies a Small Legal Death

Al-Haramain has submitted its brief for the appellate review on a number of issues related to the government’s illegal wiretapping of the charity. The questions at issue are:

1. Does FISA waive federal sovereign immunity?
2. Does FISA preempt the state secrets privilege?
3. Was plaintiffs’ non-classified evidence sufficient to prove their warrantless electronic surveillance?
4. Did the district court properly award counsel’s full attorney’s fees?
5. Did the district court err in dismissing defendant Mueller in his individual capacity?

Most of the brief will be familiar to those who have followed this case. But this passage–because it comes at the appellate level–is new.

Finally, we note that defendants do not challenge the district court’s ruling that the President lacks inherent power to disregard FISA’s preemption of the state secrets privilege. See 564 F. Supp. 2d at 1121 [ER 108]; supra at 16. Thus, for purposes of this appeal, defendants have forfeited any claim of inherent power to disregard FISA. See, e.g., Independent Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). More broadly, defendants have abandoned any defense of the TSP’s purported theoretical underpinning that the President may disregard an Act of Congress in the name of national security.

This forfeiture should come as no surprise. Top officials in the Obama administration had conspicuously repudiated the inherent power theory before taking office. See Donald Verrilli (now Solicitor General) et al., Brief for Amici Curiae Center for National Security Studies and the Constitution Project, American Civil Liberties Union v. National Security Agency, 493 F.3d 644 (6th Cir. 2007), 2006 WL 4055623, at *2 & *15 (inherent power theory is “particularly dangerous because it comes at the expense of both Congress’s and the judiciary’s powers to defend the individual liberties of Americans”); Neal Kumar Katyal (now Principal Deputy Solicitor General), Hamdan v. Rumsfeld: The Legal Academy Goes to Practice, 120 HARV. L. REV. 65, 117 (2006) (“overblown assertions” of inherent power “risk lawlessness in the name of national security”); Eric Holder (now Attorney General), Address to American Const. Society (June 13, 2008), http://www.youtube.com/watch?v=6CKycFGJOUs&feature=relmfu (videotape at 3:41–3:52) (“We must utilize and enhance our intelligence collection capabilities to identify and root out terrorists, but we must also comply with the law. We must also comply with FISA.”). [my emphasis]

The passage is not central to the argument except insofar as it notes the government has procedurally given up the theory that they used to initially rationalize the illegal wiretap program. It is, as I said, just a small legal death, limited to this one case, rather than a wholesale repudiation.

Nevertheless, I thought the timing–not just coinciding with the anniversary of 9/11 but also the release of Dick Cheney’s autobiographical novel–rather apt.

And the rhetorical value in citing three of DOJ’s top lawyers dismissing the theory–which the brief repeats by citing Holder’s even more damning call for “a reckoning” in that same ACS speech at the very start of the brief does have value.

“[S]teps taken in the aftermath of 9/11 were both excessive and unlawful. Our government . . . approved secret electronic surveillance of American citizens . . . . These steps were wrong when they were initiated and they are wrong today. We owe the American people a reckoning.” Eric Holder, June 13, 2008

Verilli’s and Katyal’s and Holder’s criticism of inherent power may have just been the rhetorical blatherings of political lawyers then in the political and legal opposition, blatherings not entirely consistent with steps they have taken since they’ve been in positions of authority.

But for the purposes of this legal brief, who better to kill the theory of inherent authority than the Attorney General?

16 replies
  1. Cregan says:

    This is an excellent, excellent post.

    On another note, I am a bit surprised, just mildly, that you haven’t said something about AttackWatch.com

    This is a new site set up so people can report someone saying something bad about Obama, run by his campaign.

    If it were only to report what some other public figure says, I could understand it, though not be jazzed about it. However, I think it is intended to go beyond that.

    It is the first time I have seen any US official set a reporting line for people to report what others have said about him.

    Even if the intention is only to report the statements of other public figures, I think it gets pretty close to the borderline.

    And, i wouldn’t like it if Rommney had such a site also. I mean, even Cheney never went that far.

  2. emptywheel says:

    @Cregan: I think you’re confusing “a political campaign” with “a US official” you drop the former reference when it comes to your superlative statement.

    If people start getting fired for saying something mean about Obama, as happened a lot during Bush’s campaigns, I will scream. Given that that hasn’t happened, I’m not all that interested in campaign-generated hysteria on both sides.

    • bmaz says:

      Well this was pretty fast work on al-Haramain! Jeebus, I go to pick up daughter at school, come back and here it is already.

  3. rugger9 says:


    People were thrown out of rallies for which they had bought tickets, Bushies roamed the parking lots looking for anti-Bush paraphernalia, etc., and you have the chutzpah to pretend that Obama’s crossed the line?

    Even now the Republicans like you charge to meet the USG official [when the chickens actually hold town halls], prescreen the questions, prescreen the attendees [ALEC in NOLA, anyone], and will still throw 70-yr-olds to the ground for daring to invade their happy-talk bubble. Bubble Boy was a well-earned nickname for Shrub.

    Haven’t you heard of Reputation Defender? Haven’t you heard of oppo research?

    Go to Clown Hall, they are more like you there.

  4. Cregan says:


    A highly intellectual response.

    I don’t have any objection to campaign aides throwing out demonstrators or people looking to stir up trouble, whether Obama aides, Reid aides or Bush aides. It is understandable.

    But, setting up a web site where people can report on others–whether a campaign or official duty–is pretty odd. And, where does it go from there? Oh, this is OK. Then the next bit further is OK.

    It is getting heavily made fun of. And, that may be the penalty it pays, but it ought raise other concerns.

    Is that the direction we want to go in? Have every candidate set up a reporting site to report in who has criticized some official? Do you REALLY want to go there?

    Because, if one is allowed to get away with, all the others, and in other races will begin to do it too.

  5. Cregan says:


    As noted to rugger, if one campaign gets away with it, others will begin to do it and in other races.

    Do you REALLY want a world in which all candidates have set up reporting sites for citizens to report to them criticisms made of them? Is that the kind of world you want?

    If you take the party notation off of it, I don’t think so.

    Especially since it would likely seep over into the scene AFTER the person takes office. Maybe not run by a government employee, but outside staff hired by the official from his “campaign” funds.

  6. jerryy says:

    Do you think there will be a following “oops, we meant to say” filing to reclaim the inherent powers part? If they do not, and this is successful, it will be harder for the president to claim the power to assassinate US citizens just ‘cuz.

  7. emptywheel says:

    @Cregan: Um. Bush got away with something far far worse.

    Come back here when Obama starts doing that. Until then, please don’t waste our time here with what is obviously a ginned up controversy. We’re happy to have disagreement ON TOPIC. Not happy to have someone come in and inject artificial outrage in our space.

  8. rugger9 says:

    So, you really believe that the Bushies didn’t abuse the NSLs and wiretap warrantlessly, set up the “free-speech zones”, and do all of the other things to “manage” the message. Your credulity in Bushie ethics is rather odd for someone who claims to be so up-to-speed.

    That, by the way includes the election fraud perpetrated in Ohio in 2004.

    And if you think that the flying monkeys on your side aren’t outrage-generators for causes real and imagined [like the “terrorist fist-pump”] you’re pretty naive. They are already your website, it’s called the Drudge Report.

  9. Cregan says:


    A very interesting response which I will remember for a long time. It says more than any other thing I have seen here.

    The web site is up now.

    I didn’t realize you thought setting up sites to have citizens report on activities of other citizens was something artificial to be outraged about.

    Also, I never said I was outraged. I think it is a troubling sign. And, if you don’t think others from both parties are going to set up the same type of web sites, you are crazy.

    And, it will lead to places that make warrantless wiretapping and torture look like small potatoes.

    But, I won’t comment on it in this thread again.

  10. emptywheel says:

    Cregan: “Oh, I will remember for a long long time that you didn’t indulge my partisan bullshit, what an outrage, not even when I said it would be worse than the known wiretapping and torture, or the political prosecutions of the last Administration, or of the real informant system that we know are going on right now. Oh no!!!”

    Really? You’re saying this ginned up bullshit is worse than torture? Honest?

  11. bmaz says:


    You’ve got to be fucking kidding me. Cregan, I am not going to speak for Marcy, but I can certainly speak for myself, and I have stood up for you when you were at your craven Cregan worst; but if you are going to pull that horse shit here, then I am through.

    When you say you will remember for a long time, remember well my friend that memories run both ways a long time. This could be one of those moments. There are a gazillion websites in the Internet universe, one here, or there, that is designed to memorialize the bleatings of one side or the other is of about exactly no consequence. For you to try and chin this horseshit up into a controversy is pathetic.

    Richard Cheney and George Bush threw American citizens out into the streets, citizens who paid for their admission and felt, and properly so, entitled to engage their president and Vice President of the United States at official functions pursuant to their job statuses. That is a hell of a lot different than some middling website that categorizes insults to a political candidate. Get a clue.

  12. MadDog says:

    @bmaz: The same Cregan pattern as I mentioned before.

    EW posts something that documents Repugs’ criminal or lunatic behavior and up pops Cregan with his standard diversion of Democrats must be equally criminal or lunatics.


  13. Timbo says:

    LOL. Well, perhaps candidates receiving reports of all the bad things people say about them will improve democracy somewhat? Seriously, the problem isn’t that they’re being reported, it’s that they’re not changing their behavior positively for the Republic based on the valid criticisms.

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