Thursday, February 09, 2006

...And This Just Feels Like Spinning Plates

One of the memes going around on the right side of the Internet just now is that Bush's flagrant violation of the Foreign Intelligence Surveillance Act of 1978 was not unconstitutional, because the President has inherent authority under the Constitution to order warrantless wiretapping, and Congress cannot legally limit that authority. One fellow claiming to be a lawyer tried to tell me on this thread (about 3/4 of the way down) that this argument was clearly correct, an "easy case," and dispositive of the entire issue.

This is a serious argument. It's wrong, but it's plausible, which distinguishes it from a couple of other arguments going around: that this is a "terrorist surveillance act" and so by definition we must not question it and must do it to save our lives, and that Congress authorized this spying when it passed the Authorization to Use Military Force against al Qaeda in September 2001. The former is the moronic spin that was being pushed by a former Rumsfeld aide on the Daily Show the other night. She was promoting her new book, in which she argues that we live in a no-spin era because whenever the government tries to spin or cover up, the 24-hour party people in the electronic media catch them and spread the word. In this case, her own example proves her right, since the New York Times had already shot down her spin, reporting that the vast majority of people whose communications were intercepted were completely unconnected to terrorism:

According to a senior prosecutor: "It affected the F.B.I. in the sense that they
had to devote so many resources to tracking every single one of these leads,
and, in my experience, they were all dry leads." Long after 9/11, “the N.S.A.
material continued to be viewed as unproductive, prompting agents to joke that a
new bunch of tips meant more calls to Pizza Hut.” The Pizza Hut joke suggests a
bleak reality for the program – many ordinary Americans have been tracked by
this program, in violation of the law, for little apparent good.


The latter argument, which was the main defense asserted by Alberto Gonzales in front of the Senate the other day, is so weak that even Lindsay Graham admonished Gonzales that he had no idea he was voting to authorize warrantless domestic wiretaps when he supported legislation allowing military force to be used against al Qaeda in Afghanistan.

The "inherent authority" argument gets into some murky areas of constitutional theory. Obviously the Founding Fathers weren't envisioning wiretaps on cell phones when they drafted the Constitution's section on the powers of Congress (Article I) and of the President (Article II). People have pointed out, correctly, that Congress could not, for example, pass a statute that took away the President's veto - the Constitution explicitly gives veto power to the President, and any attempt by the legislature to take it away would be null and void.

The arugment here is that the President has implicit authority under Article II to engage in warrantless intelligence gathering, and that Congress has no more power to limit that authority than they do to limit his veto power. A few courts have suggested that the President may have such inherent authority, but no court has suggested that inherent authority is complete authority, carte blanche, that Congress cannot regulate or limit. In fact, as fourteen legal experts, including Republicans, recently wrote in an open letter, Congress can limit and regulate the ways in which the President oversees military and defense matters - indeed, Congress has done so in several areas, and these limits and regulations have always been upheld by the courts. FISA itself limits the President's ability to gather intelligence, and FISA has been found constitutional every time it has been challenged.

The one case that every in-the-know member of the vast right-wing conspiracy can be relied upon to cite, as a recent Justice Department white paper led them to, is In re Sealed Case. All you need to know, as Stephen Colbert would say? That case did not deal with whether FISA could limit the President's inherent authority to conduct warrantless searches to obtain foreign intelligence information. The judge who wrote the opinion nevertheless stuck in a comment that “[w]e take for granted that the President does have that [inherent] authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.” This what is known as dicta: language in a judicial opinion that is not directly germane to the case under discussion, was probably not briefed or argued by the parties, and is therefore not binding authority. Notice how the court does not bother to explain why Congress, through FISA, could not encroach on an unstated, implied executive power (even assuming the executive did have such power), despite the many instances in which Congress has done just that, and been upheld by the courts.

Why would the judge have tossed in that irrelevant aside? Because the judge was Laurence Silberman, a long-time Republican partisan, mentor to Clarence Thomas and the judge for whom John Yoo clerked, and a witness who testified against enactment of FISA way back in 1978. Of course, the Act passed anyway and was signed into law, but Silberman has simply never accepted his defeat. Silberman evinced some skepticism of executive power when it was wielded by a Democrat: he egged on David Brock to go public with lurid, sensationalist reports about Bill Clinton. Now that power's back in GOP hands, though, Silberman wants it maximalized and untethered. Yes, other judges joined Silberman in a "per curiam" opinion in In re Sealed Case, but that simply means that they agreed with the decision in the case and the reasoning that led to it, not that they endorsed every little aside in the opinion.

Setting Silberman aside, the bottom line is that, even if the Bushies had a plausible, good-faith argument that FISA's restrictions on intelligence gathering were an unconstitutional limitation on inherent executive authority, they could have taken one of two appropriate routes: they could have asked Congress to amend FISA, or they could have presented the argument to the courts for resolution. It is, after all, not the job of the executive to interpret the laws- that's why the Constitution creates a judiciary in Article III. But here, the Administration refused to try to win either a judicial ruling or a legislative amendment, for one reason only: because they knew they'd lose. Instead, they tried to keep their illegal actions secret, and when the program was revealed, they announced that we should all trust them, assume they were conducting the surveillance competently and respectfully, and accede to their interpretations of their own executive authority. Should we trust the Bush administration to get it right? I don't think I need to answer that.

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