March 29, 2006

Full of Sound and Fury

...Signifying nothing.

Classic Macbeth to be sure, but in this instance, the "nothing" has turned out to be claims from Democrats, libertarians, and some weak-willed Republicans that President Bush's executive order that authorized the creation of a terrorist intercept program by the National Security Agency is in some way illegal.

Yesterday, five FISA judges testified before the Senate Judiciary Committee about this very program:

FEINSTEIN: Thank you very much. Now, I want to clear something up. Judge Kornblum spoke about Congress' power to pass laws to allow the president to carry out domestic electronic surveillance. And we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority — are those rules then binding on the president?

[U.S. District Judge Allan] KORNBLUM: No president has ever agreed to that.

When the FISA statute was passed in 1978, it was not perfect harmony. The intelligence agencies were very reluctant to get involved in going to court. That reluctance changed over a short period of time, two or three years, when they realized they could do so much more than they'd ever done before without...

FEINSTEIN: What do you think, as a judge?

KORNBLUM: I think — as a magistrate judge, not a district judge — that a president would be remiss in exercising his constitutional authority to say that, "I surrender all of my power to a statute." And, frankly, I doubt that Congress in a statute can take away the president's authority — not his inherent authority but his necessary and — I forget the constitutional — his necessary and proper authority.

FEINSTEIN: I'd like to go down the line, if I could, Judge, please. Judge Baker?

[U.S. District Judge Harold] BAKER: Well, I'm going to pass to my colleagues, since I answered before. I don't believe a president would surrender his power, either.

FEINSTEIN: So you don't believe a president would be bound by the rules and regulations of a statute. Is that what you're saying?

BAKER: No, I don't believe that. A president...

FEINSTEIN: That's my question.

BAKER: No, I thought you were talking about the decision…

FEINSTEIN: No, I'm talking about FISA and is a president bound by the rules and regulations of FISA?

BAKER: If it's held constitutional and it's passed, I suppose he is, like everyone else: He's under the law, too.


[U.S. District Judge Stanley] BROTMAN (?): I would feel the same way.

FEINSTEIN: Judge Keenan?

[U.S. District Judge John] KEENAN: Certainly the president is subject to the law. But by the same token, in emergency situations, as happened in the spring of 1861, if you remember — and we all do — President Lincoln suspended the writ of habeas corpus and got in a big argument with Chief Justice Taney, but the writ was suspended.

KEENAN: And some of you probably have read the book late Chief Justice Rehnquist wrote, "All the Laws But One." Because in his inaugural speech — not his inaugural speech, but his speech on July 4th, 1861, President Lincoln said, essentially, "Should we follow all the laws and have them all broken, because of one?"


(UNKNOWN) [probably U.S. District Judge William Stafford]: Senator, everyone is bound by the law, but I don't believe, with all due respect, that even an act of Congress can limit the president's power under the necessary and proper clause under the Constitution.

And it's hard for me to go further on the question that you pose, but I would think that (inaudible) power is defined in the Constitution, and while he's bound to obey the law, I don't believe that the law can change that.

While a full transcript of the five judge's testimony is not yet available, Spruill notes that all five—his word was "each"—of the five judges seems to hold that the President's argument that he has the inherent Constitutional authority to conduct warrantless wiretapping.

This is consistent with the FISA Court of Review's findings in In re: Sealed Case when the Court recognized "the President's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

These judges seem to agree with the exact point I made in December:

Every President from the dawn of international wire communications well over 100 years ago until 1978 assumed this right, and the courts have always deferred to this particular power inherent to the Presidency. This is supported by case law and precedent, and is summed up in the five-page Department of Justice briefing (PDF) delivered last week. In short, the Department of Justice seems willing to make the case that Bush was well within his constitutional powers. If anything, Congress may have exceeded their constitutional powers in passing FISA.

Even after passing FISA, Carter himself did not feel strictly bound by it, nor has any President since, from Reagan, to George H. W. Bush, Clinton, to George W. Bush. They have all asserted (and over the past two weeks, their DoJ attorneys have as well) that the Office of the Presidency has the Constitutional authority to authorize warrantless intercepts of foreign intelligence. This power has been assumed by every president of the modern age before them, dating back, presumably to the Great Eastern's success in 1866 of laying the first successful transatlantic telegraph cable. From Johnson, then, through Grant, Hayes, Garfield, Arthur, Cleveland, Harrison, Cleveland (again), McKinley, Teddy Roosevelt, and Taft, through Wilson, Harding, Coolidge, Hoover, to FDR and on to Truman, Eisenhower, John Fitzgerald Kennedy, Johnson, Nixon, Ford and into the Carter administration, the Presidency has had the inherent and unchallenged power to conduct warrantless surveillance of foreign powers for national security reasons.

This is a simple, unassailable fact, not matter how loudly demagogues shriek.

FISA is a case of Congress infringing upon the inherent power of the executive branch, and if it comes up as a direct constitutional challenge, FISA will most likely be struck down as Congress infringing upon the constitutional authority of the executive branch to perform foreign intelligence functions.

Statutory law cannot override the President's constitutional powers and duties; only a constitutional amendment has that power. Neither FISA nor other current statutory proposals in the Senate can infringe upon the President's Article II powers.

Posted by Confederate Yankee at March 29, 2006 09:55 PM | TrackBack

I want to respond to this because well I do. But work calls and I well have to answer.

But highlight this "the Presidency has had the inherent and unchallenged power to conduct warrantless surveillance of foreign powers for national security reasons."

Now we are not going up against the traditional foreign powers. And did this program warrant american spying? I think thats where the FISA law line was drawn correct? The FISA judges may approve the President's actions, but weren't they themselves appointed to the court for that very reason? (I'm not sure if their Bush appointees, i'd have to research later.)

Posted by: Nick D at March 30, 2006 12:53 PM

Nick, show me where in the Constitution that it restricts the President to "traditional" foreign powers, or for that matter, traditional methods. It doesn’t.

FISA does not touch international surveillance for military means (which is what Bush apparently authorized with his EO), and Bush has used FISA for law enforcement more than any president in history. Thee isn’t a real conflict in practice, but one has been ginned up by the NY Times just the same.

International surveillance for national security and domestic surveillance for law enforcement are not the same thing, and FISA only truly applies to the later. If FISA encroaches upon the Executive's Constitutionally-mandated duty to conduct foreign surveillance for the nations defense, then FISA is unconstitutional. Period. Any laws made to amend FISA that restrict these same Presidential duties will be unconstitutional as well, and Bush doesn’t even have to raise a legal challenge. If I understand the constitutional law properly as some have argued it, a President (perhaps only in his Commander in chief roll, I don’t know further than that) may merely sidestep such laws, and he doesn’t necessarily have to challenge them, very much the same way a soldier has both the right and responsibility to ignore an illegal order given to him.

Bush, based upon guidance for the White House Counsel, the NSA legal team, the Department of Justice, and two Attorney’s General, and predicated upon the fact that no case law in American history has ever even seriously challenged the President’s duties, obligations, and rights in the kind of action, appears wholly in the right. You don’t have to like it, but you do have to learn to accept it is constitutional.

Posted by: Confederate Yankee at March 30, 2006 01:38 PM

Now with traditional powers, I knew I should have been more specific. I mean to harp on the fact that this is not a traditional "war" we are waging nor our the powers we are up against. In regards to that the law, lawyers, and perhaps the Constutition need to be discussed in a different light.

I understand international spying and domestic spying are two different things, yet not in this instance. National Security and Law Enforcement are the same when it comes to the war on terror, is it not? A FISA law does not inhibit the President in his duties to act as the chief law executor in the land. However I can understand if it does with his Commander in Chief role.
That is a Constitutional issue that needs to be addressed.

Which begs the question, in a time of war does the President have to abide by the laws of justice? The War on Terror is not a traditional war, as I've acknowledged. I don't believe we give up our laws rght there tho.

It comes down to what this really is. Is it spying on Americans or is it spying on international citizens? Who are the ones we are after, one's that lawfully require a warrant to pursue, or someone who we could just swoop down and nab?

I can see where the judges, lawyers, EO's are coming from, if they look at it as purely wartime powers. But thats the question. Its not as simple as a NYT slam down would say it to be.

Posted by: Nick D at March 30, 2006 02:01 PM

It is the NYT and other media of course eagerly assisted by the Democrats that have made something an issue that for the entire history of this nation has never been questioned, that is in the name of national security and in time or war, the president, as commander in chief, has virtually unlimited power to protect and defend the nation in what ever way he deems necessary.

Posted by: docdave at April 1, 2006 09:14 PM