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An important distinction and, not properly characterized by the good professor.
If the Commander in Chief does it for foreign intelligence purposes, it's legal. That's the argument.
The Nixon Doctrine
If the commander in chief does it, it's not illegal.
By David Cole
Posted Monday, Feb. 13, 2006, at 3:39 PM ET Slate
President Bush's defense of his order authorizing the National Security Agency to spy on Americans without a warrant ultimately rests on a claim that Congress may not cons utionally limit the president's authority, as commander in chief, to select the "means and methods of engaging the enemy." This argument holds not only that the president has "inherent" power to collect "signals intelligence" on the enemy, but also that that his inherent power cannot be regulated or checked by Congress—even when it includes wiretapping Americans in the United States without a warrant.
This claim of uncheckable or "exclusive" cons utional authority amounts to nothing less than a modified version of President Nixon's infamous 1977 assertion that "when the president does it, that means that it is not illegal." President Bush has revived that discredited doctrine, with only a slight modification. His new formulation: If the commander in chief does it, it is not illegal. This unprecedented assertion cannot be squared with our cons utional structure, which relies upon checks and balances—even during wartime—or with Supreme Court precedent. Indeed, the Supreme Court rejected this precise claim when President Bush's lawyers made it in the Guantanamo detainees' case, Rasul v. Bush, in 2004. The administration, in short, is advancing a conception of presidential power that finds no support in cons utional precedent: the power to act above the law.
The president's argument, articulated in a 42-page single-spaced memorandum submitted to Congress, is that the commander in chief has inherent power to select the "means and methods of engaging the enemy." That power may not be restricted by Congress, the memo reasons. And since electronic surveillance related to al-Qaida falls within "engaging the enemy," the president cannot therefore be restricted in his decision to conduct such surveillance. Detention and interrogation are also "means and methods of engaging the enemy," so it would follow that any congressional effort to regulate these matters is also uncons utional.
The argument is nothing if not bold. But accepting it would require overturning or ignoring the Supreme Court's decision in Rasul v. Bush. In arguing that case, the Bush administration made precisely the same contention it makes now. It maintained that interpreting the habeas corpus statute to extend to enemy combatants held at Guantanamo "would directly interfere with the Executive's conduct of the military campaign against al Qaeda and its supporters," and would therefore raise "grave cons utional problems." Rejecting this argument, the court ruled that Congress gave federal courts the power to hear these cases. Even Justice Antonin Scalia, who dissented, agreed that Congress could have extended habeas jurisdiction to the Guantanamo detainees. Thus, not one member of the Supreme Court accepted the president's commander-in-chief argument.
The Bush administration's defenders often protest that even if his NSA spying program does violate a criminal statute, the program is not necessarily illegal because a statute cannot override the Cons ution. If the president could engage in foreign intelligence surveillance before Congress regulated that conduct through the Foreign Intelligence Surveillance Act, they argue, Congress cannot cons utionally limit his ability to do it thereafter. They point to the fact that before FISA, presidents routinely conducted foreign intelligence surveillance, that courts recognized the legitimacy of that authority, and that the Clinton administration itself asserted the president's inherent authority to conduct physical searches for foreign intelligence purposes before FISA regulated such searches.
But this argument reflects a fundamental misunderstanding of separation of powers doctrine. That doctrine holds that the president's power to act is directly affected by actions taken by Congress. As Justice Robert Jackson explained in his influential concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, a 1952 case invalidating President Truman's seizure of steel mills during the Korean War, under our system of checks and balances, Congress' actions are critical. When Congress has affirmed the president's authority or remained silent, the president's "inherent" powers to take initiative are fairly broad; but when Congress has passed a law expressly barring the president's actions, he may act in contravention of that statute only if Congress is disabled from acting upon the subject. Accordingly, what presidents did before FISA was enacted, or what President Clinton did before FISA applied to physical searches, does not determine what the president may do once FISA criminally prohibits electronic surveillance and physical searches without a warrant.
Congress plainly is not "disabled from acting" on the subject of wiretapping of Americans. It has legislated in this area for years, and its authority to do so stems directly from its authority over interstate and foreign commerce. Moreover, the Cons ution gives Congress widespread authority to regulate the commander in chief's conduct of a war. Congress defines the scope of the war under its power to declare war; it decides whether there shall be an army and how much it should be funded; and it creates rules and regulations for the army. It has long subjected the commander in chief to the Uniform Code of Military Justice, enacted statutes regarding the governance of occupied territories, enacted a habeas corpus statute that governs enemy combatant detainees, and prohibited torture, among other things. On the administration's theory of an uncheckable commander in chief, all these laws would also be uncons utional.
Each time the Supreme Court has confronted a presidential claim that the commander in chief can act contrary to statute, or cannot be checked by the other branches, it has rejected it. In addition to the Guantanamo and steel-seizure cases mentioned above, the court in Little v. Barreme, an 1804 decision, ruled unlawful a presidentially authorized seizure of a ship during the "Quasi War" with France. The court found Congress had authorized the seizure only of ships going to France, and therefore the president could not unilaterally order the seizure of a ship coming from France.
And in Hamdi v. Rumsfeld, the court expressly rejected the president's argument that courts may not inquire into the factual basis for the detention of a U.S. citizen as an enemy combatant. As Justice O'Connor wrote for the plurality, "Whatever power the United States Cons ution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."
The fact that the Supreme Court has never found a commander-in-chief function that could not be regulated by Congress does not mean, of course, that there are no limits on Congress' power. If Congress sought to micromanage the war by assigning authority to lead the troops to someone outside the president's chain of command and subject to congressional removal, for example, its actions would likely be uncons utional. But the notion that Congress cannot protect the privacy of Americans during wartime by requiring the president to obtain a warrant before spying on Americans is entirely unprecedented—unless, that is, you consider the bare assertions of Richard Nixon a precedent.
David Cole is a professor at Georgetown University Law Center and pro bono co-counsel in Center for Cons utional Rights v. Bush, which challenges the legality of the NSA program.
An important distinction and, not properly characterized by the good professor.
If the Commander in Chief does it for foreign intelligence purposes, it's legal. That's the argument.
Liberals have lost 3 times in a row. The first loss was the 2000 election, the second one was trying to stop Operation Iraqi Freedom, and the third was trying to win election in 2004. They lost all of them, so now in their despiration to get their power back, they will blame bush for anything, including stumping their toe.
That post was worth about 2 cents.
A rejoinding article is needed, something with a le along the lines of "If the commander in chief does it, it's not necessarily illegal." That would ensure proper coverage of both political sides in this nation.
Perhaps an argument, but not fact.
Fact only so that it's only foreign and not an abuse of domestic surveilance.
He stated "for foreign intelligence purposes". If the US is wiretapping domestic calls then it is an issue. Hence the reason the FISC was created.
I'm still not clear on why a court that allows you to submit requests for warrants after the fact and a court that has something like a 98% acceptance rate is such a hindrance to US SIGINT.
Then when, if ever, does FISA apply?
Better yet, I suggest you read the law and figure out where it may not apply.
Read the McCarthy article in the other thread or here .
So it's Emperor Bush, not President Bush.
After all, I'm for proper reference. To that end, good to see you provide a link.
No more so than with any previous President.
No prob...did you read it?
I've read the McCarthy article and several other treatments favorable to and adverse to the Administration's stance. I still can't reconcile the argument with FISA, other than to say that FISA is somehow superfluous and the Executive's compliance with FISA is largely a matter of grace rather than a belief that the President is bound by the law.
I thought McCarthy covered it quite well here.
Plus, AG Gonzales' explanation as to why seeking a change to FISA was impracticle.Nor does it mean the president is bound to honor congressional enactments (such as the Foreign Intelligence Surveillance Act (FISA)) to the extent their operation would constrain his inherent authority — a position supported historically by administrations of both parties because of the elementary proposition that a statute cannot trump the Cons ution.
It is simply a fact that there is a chasm between presidential authority in the domestic and foreign realms. In domestic affairs, we live in a single political community, the government has a monopoly on the use of force, and courts are imposed as a bulwark to protect Americans from executive and legislative overreaching. There, Congress has broad powers to regulate executive action. Not so in the international arena. There, we confront unpredictable contingencies including enemies claiming the power to use massive lethal force. The cir stances are not hospitable to the same kind of antecedent law-making that is practical in domestic affairs. That is why the framers provided for an energetic executive, not national security by committee.
It is also, no doubt, why, in United States v. Brown (1973), the Fifth Circuit U.S. Court of Appeals, in upholding the president's inherent Article II authority to conduct warrantless wiretaps for foreign intelligence gathering, asserted that "[r]estrictions upon the President's power which are appropriate in cases of domestic security become artificial in the context of the international sphere." It is why, when FISA became law in 1978, President Carter's attorney general, Griffin Bell, stressed that FISA did not (and, indeed, could not) vitiate the president's inherent authority under Article II. It is why, in 1994, President Clinton's deputy attorney general, Jamie Gorelick, testified that the president maintained his inherent Article II authority to order warrantless searches even when FISA was expanded to regulate such searches. And it is why, even after a quarter-century of FISA, the highest and most specialized court ever to review that statute, the Foreign Intelligence Court of Review, observed in 2002: "[A]ll the other courts to have decided the issue [have] held 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."
I think he adequately dissassembled '52 steel seizure argument as well.Attorney General Alberto Gonzales explained in answers to questions posed by Senate Judiciary Committee Chairman Arlen Specter, the administration believed it could not get FISA amended to approve the NSA program without compromising operational details of the program, which would inexorably have alerted the enemy to our capabilities. Thus it went ahead, not because it thought Congress unreceptive but because it believed — quite plausibly — that it already had valid legal grounds and pursuing additional, more specific authority would have undermined wartime effectiveness.
Care to rebut those points?
FWD if an article is favorable to Bush it is wrong? And if it is not, it is
correct? Give me a break.
Yes. Since that's what I said, xray.
I'm not sold on buying McCarthy's argument as gospel, largely because just as the opponents of the program can be charged with partisanship, so too can the advocates for the program. I still don't understand how one can say that this is not a close case, given that smart people on both sides of the political spectrum are for and against this on fairly significant bases. Accordingly, I respect McCarthy's viewpoint and argument, but advocates for a position rarely concede the weaknesses of their arguments.
As to the substance, McCarthy's point would seem to either: (1) leave FISA applicable to communications made by foreign agents already in the United States; or (2) make FISA wholly superfluous except by the good will of the Executive. I still don't necessarily buy either position, particularly because were the argument that simple, the numerous fallback positions assumed in briefing papers would be wholly unnecessary. There is a nuance that I don't have the time to fully flesh out. Nevertheless, assuming that the former is the more credible position, I guess the question then is whether the Administration would concede that a warrant would be required if a communication ostensibly subject to the NSA program is initiated in the United States.
I understand that argument, but that position just doesn't make any sense to me. If the President has this authority as an inherent matter of Cons utional power, the Administration would have had no need to seek a change to FISA under any cir stance. If you and McCarthy are right, FISA is wholly inapplicable to these wiretaps, so why even bother seeking an amendment? To placate social liberals out of a sense of balance? That would be a first for this Administration.
This is part and parcel of the fallback argument conundrum, in my estimation. If its cons utional, its cons utional and no law can change that. It would make no sense, in that instance, to argue for a change to FISA or to defend the failure to seek that change.
I also can't square that argument with the Administration's original stance that the AUMF somehow acted to repeal FISA altogether.
If Gonzalez is on the level, does that mean he thought FISA didn't apply before he thought that it might apply before he thought that it didn't apply?
I understand that you believe that. Justice Jackson's concurrence is not controlling authority, but it is a significant opinion concerning the scope of Cons utional power offered by a highly-esteemed member of the Supreme Court. Concurrences don't control, but they often provide guidance to subsequent courts that are deciding issues that have yet to be decided. There is no doubt that Justice Jackson continues to be held in high esteem at One First Street -- one of Justice Jackson's clerks was William Rehnquist, for whom Chief Justice Roberts once clerked; the likelihood that the Jackson influence continues in the Supreme Court is substantial.
The fact that either side is arguing about Justice Jackson's concurrence is indicative of a dearth of authority on the issue at hand. If the issue arises in the context of litigating the cons utionality of this program, it would strike me as exceedingly odd if the resultant opinion did not rely on or wholly discount Justice Jackson's approach -- only time will tell on that.
Last edited by FromWayDowntown; 02-16-2006 at 09:54 PM.
I'm not a liberal, but God Damn if I don't lose everytime I read your opinion.
You are the Horry For 3! of the political forum.
One side can be right.
Sure. But, for the time being, which side is right is far from clear or certain.
I don't think so.
Of course you don't. If you did, you wouldn't be you. I don't mean that to be offensive, but you've obviously staked out a position in this and feel that it's unassailable. I think that sentiment discounts the intelligence of many who disagree with that position, but that's my position. Ultimately, neither you nor I will decide which side is right.
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