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One wonders how any rational person could be fooled by the absurd argument that was put forth by the Justice Department in January about the Bush-authorized secret NSA spying program. It’s an argument that has been made in bits and pieces and in so many words by a variety of Justice Department lawyers and here and there by Attorney General Alberto Gonzales.1
The argument is never fully stated by any of these officials, but put the pieces together and it would read something like this: “We don’t think our secret program which spies on US citizens is illegal (even though it violates a federal law), because the President can do what he wants anyway, but we’re going to play nice and get court approval for the law to make you happy — but it’s really so you can’t argue it’s illegal anymore, although, if the President wants to, he can reauthorize the secret program at any time without court approval.”
The only legitimacy that argument has is this: it is legitimately crazy-making. In terms of argument, it is circular and absurd.
Of course, when it is laid out in plain language and in sequence, the absurdity becomes clear. But the absurdity is harder to discern when officials hang the argument on emotionally loaded terms like “national security” or “war on terror,” or create bright-line assertions in their favor where the Constitution declines to (like by saying the President has the “inherent” authority to wiretap when such authority is nowhere set forth in the Constitution), or set up false dilemmas, such as the supposed choice between the NSA program and federal law (e.g., the NSA program has the “speed and agility” needed, but federal law doesn’t).
Here are the plain facts:
The program was first revealed in a New York Times article in December 2005, 2 although Bush soon admitted he had secretly and unilaterally authorized it, without court or congressional approval, shortly after 9/11. That is, Bush had secretly authorized the National Security Agency (NSA) to spy without a warrant on communications that admittedly involved American citizens.
On its face, this violates the Fourth Amendment right to be free of unreasonable searches and seizures — which has for centuries required that law enforcement show probable cause of criminal activity in order to obtain a warrant.
According to former presidential advisor John Dean, when Bush admitted to having authorized the secret program, he became the first president to have admitted to an impeachable offense.3
On January 17, 2006, only weeks after the media revelations, the American Civil Liberties Union filed a lawsuit challenging the program. In August 2006, a federal district court ruled that the program indeed violated the First Amendment, the Fourth Amendment, and a federal law known as the Foreign Intelligence Surveillance Act, or FISA, which provides procedures and requirements for executive branch electronic surveillance collection. The Justice Department appealed to the Sixth Circuit Court of Appeals.4 (Arguments were heard in that court on January 31, 2007. The decision is pending.)
The Gonzales Letter
On January 17, 2007, a year to the day after the ACLU filed the lawsuit, Attorney General Alberto Gonzales announced in a letter to Senators Leahy and Specter that — after five years of evading court approval — “orders” for the program (called the Terrorist Surveillance Program, or TSP, by Gonzales) had been approved by a FISA Court judge and thus the President had determined not to reauthorize the program upon its expiration.5
This letter was issued less than two weeks before arguments were scheduled to be heard on the appeal of the case. Among other sneaky legal tactics — including that the case cannot be heard because of “state secrets” and the plaintiffs cannot sue because they can’t know whether they’ve been targeted or not, which, of course, they can’t know because it’s secret –, the Justice Department argued that the case was moot and should be dismissed since the NSA program, having been approved by the FISA Court, was now “legal.”
In other words, Justice says that because a FISA Court judge approved orders under the program, even though Bush refuses to acknowledge any limitations on his authority to reauthorize it, nobody can challenge it.
One blogger on the ACLU blog noted: “The voluntary cessation of an illegal action does not dissolve its illegality.”6
Justice argued further that if the court did not agree that the case was moot, it should dismiss it anyway because the President has inherent authority to wiretap to protect national security.7
What’s Wrong with this Picture? What was really approved?
First of all, despite Gonzales’ misleading claims, the FISA judge did not approve the program.
The orders that the judge approved were merely warrants which the Justice Department submitted for traditional FISA Court approval — no different than any others except that they included specific application to members or agents of al Qaeda. The judge merely approved several warrant requests utilizing procedures developed by the Justice Department to bring the TSP surveillance under FISA. Those warrants expire at the end of 90 days, like all other FISA warrants.8
Further, we have no way of knowing whether these particular “orders” contain the procedures and methods that form the heart of the TSP procedures and methods that President Bush originally determined could not be carried out under FISA, or that other TSP procedures and methods which were not submitted for FISA Court approval might not have been subsumed into another presently-unknown, secret program.
In any event, Gonzales’ letter is misleading. While Gonzales never actually says that the judge approved the program, the manner in which he presents the idea makes one think that the program was approved and everything is now okay. What he actually states is that as a result of the judge approving the orders, all further TSP electronic surveillance will henceforth “be conducted subject to the approval” of the special court.
So, we think: “Great! We’re following the law now! All TSP surveillance will now be conducted subject to the court’s approval!” (So, the judge must have approved the program.)
But almost immediately after stating that TSP would now be subject to court approval, Gonzales says something that hints at the hidden truth. “Any court authorization had to ensure that the Intelligence Community would have the speed and agility necessary to protect the Nation from al Qaeda — the very speed and agility that was offered” by the TSP.
We are so caught with the important words “speed and agility” and “protect the Nation from al Qaeda” that we don’t recognize that Gonzales has reversed the approval process. Now it is not the court that is doing the approving; it is Gonzales and the Department of Justice. For, what if the court could not ensure the speed and agility he required? Then Gonzales would ostensibly not bother to seek its approval and the President would go on wiretapping without a warrant. The court approval is thus actually devoid of meaning.
The “speed and agility” remark is another ruse, too. Justice Department officials admitted on the very same day that Gonzales issued his letter that FISA contains an “emergency authorization provision” and that “the judges of the FISA court often make themselves available at all hours to approve emergency authorizations.”9 Indeed, FISA allows for surveillance to be conducted for up to 72 hours without a warrant when the Attorney General determines that an emergency situation exists. (50 U.S.C. Sec. 1805(f))
If FISA already allowed for emergency authorization “at all hours,” what further speed and agility is needed? And in any event, this argument is no excuse for breaking the law.
Does the President have “Inherent Authority” to Wiretap?
The second thing wrong with Gonzales’ claim is his assertion of inherent (ie., absolute, unfettered) presidential authority to engage in electronic surveillance. The truth is not so clear-cut as Gonzales or the Department of Justice would have it.
Rather, the claim of inherent presidential authority raises a two-centuries-old question, upon which no Supreme Court has directly weighed-in. To put it bluntly: “Foreign intelligence collection is not among Congressís powers enumerated in Article I of the Constitution, nor is it expressly mentioned in Article II as a responsibility of the President.”10
So, if no court has ruled directly on this question, how can I be so sure that Bush is wrong? How can I say his administration’s argument is absurd? If Bush does have inherent constitutional authority as the President and/or as the Commander-in-Chief to engage in warrantless wiretaps of Americans, no law can abridge it. In other words, if the Constitution gave him that authority, no law could take it away. The law itself would be unconstitutional.
But I am sure Bush and Gonzales are wrong.
I am sure because both Congress and the Supreme Court have spoken against the Administration’s view on this issue.
I am sure that Bush — and the agency now acting as his personal attorney, the Justice Department — is wrong, because an overwhelming majority of Congress already spoke resoundingly on this issue when it voted in 1974 to impeach President Richard Nixon for exactly this type of abuse of authority.11
And I am sure because Congress four years later enacted the Foreign Intelligence Surveillance Act to restrict and regulate executive branch electronic surveillance. FISA was enacted in direct response to Nixon’s abuses of electronic surveillance.
And I am sure because the Supreme Court ruled in the Korean-War era Steel Seizures Case, 12 and more recently in the Hamdi case,13 that “inherent” presidential authority, even in time of war, is “not a blank check,” but is limited by both Congress and the Constitution.
Looking Closer: The Meese Claim
What Do Legislative History & Judicial Determinations Say?
Let’s take a closer look into the inherent authority argument. We will shortly see how deeply flawed it is.
The government’s argument in the NSA case is partially articulated in a February 12, 2007 article by Edwin Meese III.14 This is the Meese who served as Attorney General under President Reagan and who was one of the progenitors of the Unitary Executive doctrine and the use of presidential signing statements to avoid presidential vetoes and establish an “alternative legislative history” which is a much-favored practice by Bush.15
Meese writes that “the legislative history of FISA as well as the judicial determinations that have occurred since it’s enactment” support the view that the President has the “inherent authority, as the commander in chief, to direct a military intelligence agency, such as the NSA, to intercept enemy communications during wartime and when necessary to protect national security.”16
This is the Justice Department’s argument, too.17
The argument sounds straightforward enough. One would not be wrong to think that Meese — who, remember, is a lawyer and a former Attorney General — must know what he’s talking about. He’s an expert, highly-credentialed and respected. But, alas, as we shall see shortly, Meese is either not well-informed or he is stating an intentional untruth.
Meese says that the legislative history of FISA supports his absolute inherent authority view. It does not.
The FISA legislative history — the congressional records made during the debate and consideration of the law — clearly shows that Congress felt the President did not have unbounded inherent authority to engage in warrantless electronic surveillance and that Congress had the constitutional authority to restrict presidential use of wiretaps to protect national security.
The Senate Judiciary Committee stated in its report about the pending FISA bill that the Act was ìdesigned . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.”18
Just prior to Judiciary Committee consideration of the FISA bill, a specially-formed Senate Select Committee to Study Government Operations with Respect to Intelligence Activities noted in its report:
The application of vague and elastic standards for wiretapping and bugging has resulted in electronic surveillances which, by any objective measure, were improper and seriously infringed the Fourth Amendment rights of both the targets and those with whom the targets communicated. The inherently intrusive nature of electronic surveillance, moreover, has enabled the Government to generate vast amounts of information – unrelated to any legitimate government interest – about the personal and political lives of American citizens. The collection of this type of information has, in turn, raised the danger of its use for partisan political and other improper ends by senior administration officials.19
Again, the Senate Judiciary Committee stated: “As to methods of acquisition which come within the definition of ëelectronic surveillanceí in this bill, the Congress has declared that this statute, not any claimed presidential power, controls.”20
And the House Permanent Select Committee wrote: “In the past several years, abuses of domestic national security surveillances have been disclosed. This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties.”21
The legislative history therefore directly contradicts Meese’s statement.
But wait a minute: does the President need to listen to Congress if he doesn’t want to?
If he does have inherent constitutional authority, does Congress have the power to restrict him?
The answer is that where the Constitution explicitly grants authority to the President, Congress cannot deprive him of it. There are hardly any explicitly enumerated presidential powers. He is the Commander-in-Chief, which has been viewed as a grant of the power to direct military forces when at war, but he does not have the power to declare war (Congress does, as it has the power to withdraw funding for war). He explicitly may make treaties and appoint ambassadors and judges, but only with the advice and consent of two-thirds of the Senate. The “executive power” is explicitly “vested” in the President, but that power is not defined.
The Constitution, however, does not explicitly grant to the President the power to engage in electronic surveillance. Foreign affairs is often viewed as a largely executive power, partly shared with Congress, and during World War II it was generally accepted that electronic surveillance of foreign nations and powers was a presidential responsibility, particularly during wartime. But that is foreign intelligence, not domestic (where 4th Amendment protections apply). This is therefore an area in which Congress can legitimately legislate. And, in this instance, it has legislated to limit and regulate presidential electronic surveillance.
Over 50 years ago, Justice Jackson articulated in his concurrence in the Steel Seizures Case a framework for deciding the extent of the president’s authority, including during war time and in matters involving national security. He wrote:
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum . . . When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . . When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter….22
With respect to the NSA program, then, the President may rely only on his own express constitutional powers minus Congress’ powers. Put another way, given that Congress has explicitly limited executive branch electronic surveillance, the President’s constitutional powers can only extend within those limitations, not beyond them. In other words, he may not violate a law that legitimately limits his authority in this area.
As the Senate Judiciary Committee explained, Congress enacted FISA with “the understanding — concurred in by the Attorney General [Griffin Bell] — that even if the President has an ‘inherent’ Constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance.”23
Judicial Determinations: The 2002 FISA Court of Review Decision
The question of “judicial determinations” is a bit more complex, but far less conclusive than Meese suggests.
When Meese wrote that judicial determinations supported the inherent authority claim, he was likely referring to the 2002 FISA Review Court determination which stated that the ìTruong court” — an important pre-FISA district court case — held, “as did all the other courts to have decided the issue, . . . that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the Presidentís constitutional power . . . î24
This same language was also quoted in a letter, dated December 22, 2005, from Assistant Attorney General William E. Moschella to members of the Senate Select Committee on Intelligence, in which Moschella explained the Administrationís position with regard to the legal authority supporting the NSA activities.25
Since the FISA Review Court is an appellate court and the decision was not appealed to the Supreme Court, it stands as strong authority, and Meese is correct to use it as such. Nor would we be wrong to place great weight in the decision.
However, the determination has a major flaw, which was pointed out in a January 2006 analysis by the Congressional Research Service (CRS).
The CRS wrote in a report titled: “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information”:
While the Court of Review does not cite to the cases to which it is referring, its allusion to the holdings of ìall the other courts to have considered the issue,î appears to have been to cases which pre-date FISAís passage or which address pre-FISA surveillances. Such cases dealt with a presidential assertion of inherent authority in the absence of congressional action to circumscribe that authority.26
In other words, the FISA Court of Review was relying on outdated cases to decide a current issue. It’s a huge mistake for a court to make.
The CRS report understated the result of the mistake:
In the wake of FISAís passage, the Court of Reviewís reliance on these pre-FISA cases or cases dealing with pre-FISA surveillances as a basis for its assumption of the continued vitality of the Presidentís inherent constitutional authority to authorize warrantless electronic surveillance for the purpose of gathering foreign intelligence information might be viewed as somewhat undercutting the persuasive force of the Court of Reviewís statement.27
Thus, judicial determinations which support Meese’s view of inherent presidential authority fall far short of being legally or even rationally convincing.
Meese relied on a bad decision, and as an attorney, he should know better. And so should Attorney General Gonzales. It is disingenuous, unethical, or simply embarrassing for a lawyer — any lawyer, but particularly the highest-ranking lawyer in the country — to say, as Gonzales said in his January 17th letter, that the TSP already “fully complies with the law” — when he had to have (or should have) known that neither the legislative history nor the judicial determinations — including those by the FISA Court of Review and the Supreme Court — supported his of his department’s (or the President’s) repeated assertions of uncontested and nearly absolute inherent presidential authority.
In sum, there really is no cogent argument the President can make to justify breaking the law to secretly wiretap American citizens. And getting a FISA court to belatedly approve orders purportedly under the program does not not somehow make the President’s previous program legal.
JENNIFER VAN BERGEN, a journalist with a law degree, is the author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004). She writes frequently on civil liberties, human rights, and international law and Archetypes for Writers: Using the Power of Your Subconscious (Michael Weise Productions, 2007).. She can be reached at email@example.com.
5 See footnote 1.
10 See footnote 1.
11 See Article 2, para. 2 at http://watergate.info/
18 See page 13 in http://www.fas.org/sgp/crs/intel/m010506.pdf
19 Same as footnote 18.
20 See link in footnote 18, page 22.
2 1Same as footnote 20.
24 See page 48 in http://www.pegc.us/
26 See pg. 31 in http://www.fas.org/sgp/crs/intel/m010506.pdf
27Same as footnote 26.