NYT: No Longer a "Domestic Surveillance Program?"

Today's "legal context" article in the NYT shifted the focus of the Alito confirmation hearings from abortion to the limits of presidential power. Once again, reporter Adam Liptak offers a confusing round-up of the issues Alito will likely face in the hearings today and during the week.

The opening line of the article, however, is key when asking some later questions:

"The opinion is more than 50 years old, and it is not even binding precedent."

The opinion Liptak is referring to is a 1952 decision from Youngstown Sheet and Tube Company v. Sawyer, in which President Truman attempted to sieze private steel mills in order to put down labor disputes during the Korean War. The Truman Administration argued that it was in the interest of national security to have steady steel production, but this position was rebuked a court which felt Truman was over-stepping his presidential authority.

The Youngstown decision is then held up throughout the remainder of the piece as the central argument and discussion point "against" the NSA program, which has been more or less supported by the American people and has been overseen by members of the elected branches of Congress.

In fairness to Liptak, he notes how the Youngstown case differs from the penumbras of the NSA program (besides the obviousness of the difference between establishing facts). This still leaves something to be desired however. In yesterday's article, Liptak twice referred to the NSA program as the "domestic surveillance program." Today, he does an about face and notes that "[t]he seizure of steel mills... was a wholly domestic matter. The surveillance program, by contrast, monitors international communications between the United States and other nations." The piece does not refer to it as "the domestic surveillance program" this time around.

While it is evident that the focus on the Youngstown case is incidental (due to Sen. Specter bringing it up during the questioning), it is never the less noteworthy that the article goes on to explain the decision and its three-part "proposal" that intends to size-up presidential power during wartime. Why this analysis is necessary for a decision that "is more than 50 years old, and it is not even binding precedent" is not entirely clear.

The article ends on a somewhat confusing note in its final three sentences. Liptak articulates the final prong of Justice Jackson's argument, which sees the President's acting in spite of the will of Congress as an oversteping of his powers. Regardless of the fact that the Youngstown case was decided in 1952 with no established precedent to speak of before or since, Liptak then inserts a little backhand at the administration (mentioning the FISA courts seemingly out of nowhere). Here are the final three sentences:

"The third category [of the Youngstown criterion] is where the president takes action at odds with the will of Congress. A 1978 law, the Foreign Intelligence Surveillance Act, appears to require court approval before monitoring of the sort the administration has acknowledged. In this third area, Justice Jackson said, the president's power is "at its lowest ebb," and claims of presidential authority "must be scrutinized with caution."

Using a 1952 decision that has no binding as precedent is indeed a strange way to rebut a legal and congressionally approved international data mining and surveillance program. All in all, today's Alito-watch piece in the NYT is slightly more accurate than yesterday's, but still has its share of rhetorical and factual peculiarities that have come to characterize Grey Lady's reporting these days.