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.

FEINSTEIN: Judge?

[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?"

FEINSTEIN: Judge?

(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.