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Monday, Nov 23, 2009
The notion of absolute executive power has a venerable history, but it lacks an American pedigree.
Dec 22, 2005 | President Bush's explanations of why he is justified in ordering domestic surveillance by the National Security Agency have shifted with every news cycle. He has sent out Attorney General Alberto Gonzales and Secretary of State Condoleezza Rice to bolster his justifications. (Rice averred that she was "not a lawyer" before repeating the talking points.) Bush personally tried to suppress disclosure by the New York Times, which had held the story for more than a year before breaking it, by summoning Times publisher Arthur Sulzberger and editor Bill Keller to the Oval Office on Dec. 6.
Bush invokes national security, the war on terror, and Sept. 11 as though these phrases are enabling legislation. He has offered no sound legal basis for his evasion of the Federal Intelligence Surveillance Act, his dismissal of Congress, and his abrogation of the Fourth Amendment. He has not presented any convincing reason why he decided not to seek warrants from the special FISA court set up for that purpose. One of the 11 members of the secret FISA court, U.S. District Court Judge James Robertson, has quit in protest.
Bush claims to have briefed and received the approval of congressional leaders. But former Sen. Bob Graham, D-Fla., who was chairman of the Senate Intelligence Committee when Bush began his spying, said, "There was no reference made to the fact that we were going to ... begin unwarranted, illegal, and I think unconstitutional, eavesdropping on American citizens." After being informed of the president's actions in 2003, Sen. Jay Rockefeller, the ranking Democrat on the Intelligence Committee, sent a handwritten note expressing his misgivings to Vice President Dick Cheney, who had briefed him. "Clearly, the activities we discussed raise profound oversight issues," he wrote. (Rockefeller's position on the Intelligence Committee kept him from making public what he knew.) The Republican chairman of the Senate Judiciary Committee, Arlen Specter, has announced his disquiet and is planning to hold hearings.
Attorney General Gonzales and former National Security Agency director Gen. Michael Hayden have issued assurances that there was no purely domestic spying. "People are running around saying that the United States is somehow spying on American citizens calling their neighbors," Gonzales said. "Very, very important to understand that one party to the communication has to be outside the United States." But another New York Times report revealed that this claim was false and that there has been purely domestic spying.
Bush has contradicted his previous statements that he sought warrants for all wiretaps and searches. "Now, by the way," he said on April 20, 2004, "anytime you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way." But the glaring contradiction between his statement then and his current ones does not deflect the president from stubbornly persisting.
Bush angrily called the leaking of his spying a "shameful act," expressing an emotion that contrasts with his obvious impassivity to the leak attributed to senior members of his administration of the identity of CIA operative Valerie Plame (an act under investigation by a special prosecutor, who has so far indicted the vice president's former chief of staff, I. Lewis "Scooter" Libby). For Bush, the whistleblower who disclosed his surveillance is a traitor within. "The fact that we are discussing this program is helping the enemy," he said. And yet no one has really explained why the president mistrusts and bypasses the FISA court.
Since October 2001, Bush has personally authorized more than three dozen warrantless wiretaps. "We've got to be able to detect and prevent. I keep saying that, but this ... requires quick action." But speed cannot be the reason for ignoring the FISA court. From its inception in 1979 through 2002, covering the period when Bush began spying, the FISA court issued 15,264 warrants. In 2003, the court rejected four applications, and the next year it rejected none. In its entire history, those four are the only rejections.
William Rehnquist, the late chief justice of the Supreme Court, appointed all the sitting FISA judges. Nearly all are inclined to presidential prerogative. Its proceedings are ex parte, that is, secret. The FISA statute stipulates that the government can wiretap first and apply for a warrant later, within 72 hours. So long as it can provide "probable cause," the court will approve. In the light of the law and the court's record, the only reason to avoid it would be because the government felt the court that had acted almost as a rubber stamp would deny its requests.
The FISA court would reject an application on two grounds. First, that there was no probable cause. The court must adhere to the law and cannot authorize dragnets. But Attorney General Gonzales has declared that any spying is triggered by "reasonable basis" -- not probable cause. "Reasonable" means anything the government decides it is, lacking a scrap of potential evidence. Second, the court would reject an application in which the evidence supporting "probable cause" had been produced by torture. But it is unlikely that the government would provide the court with details of the interrogation technique used. In any case, Bush apparently opted to launch trawling expeditions, lacking concrete evidence beyond lists of telephone numbers, and without the lawful imprimatur of the court.
"The authorization I gave the National Security Agency after September the 11th ... is fully consistent with my constitutional responsibilities and authorities," Bush said in his weekly radio address Dec. 17. In other words, he is commander in chief and can act as he chooses. But the Supreme Court ruled in the 1952 Youngstown case, involving President Truman's seizure of a steel mill to stop a strike during the Korean War, that the commander in chief lacked the power to exceed the will of the Congress. "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb," wrote Justice Robert Jackson in his concurring opinion.
"I'm also using constitutional authority vested in me as commander in chief," Bush went on. But the Supreme Court ruled in the 2004 Hamdan case that the commander in chief could not imprison U.S. citizens without trial no matter what the suspicion. "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens," wrote Justice Sandra Day O'Connor.
"To fight the war on terror," Bush continued, "I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th." But that congressional war resolution authorizing Bush to take "necessary and appropriate force" against those responsible for the 9/11 attacks did not intend presidential usurpation of all congressional and judicial powers in the name of national security. Indeed, after the AUMF, the administration sought amendments to FISA, understanding that congressional authority was required.
