Bush And The NSA Wiretapping

Ken AshfordBush & Co., Constitution, War on Terrorism/TortureLeave a Comment

This topic has been churning in the blogosphere and media for 48 hours now (at least), and I have nothing new to add.

But I am absolutely appalled at the poor defense given to the action, as a matter of constitutional law.

The Fourth Amendment to the Constitution is quite simple: There shall be no warrantless search and seizures of people and their belongings.  Over the years, there has been a steady chipping away at the Founder’s words, but that process has been one publicly exposed, discussed and debated.

What the President has done here, unilaterally and in secret, is simply thumb his nose at the Constitution — the very document he swore to uphold.  His reasoning?  He is the Commander-in-Chief, and he can do what he damn well wants.  Oh, and Congress gave him that authority.

The problem, of course, is that if the President can do whatever he wants as C-i-C, that renders the rest of the Constitution a virtual nullity.  A mere shadow of what the Framers wrote.  For example, what is to prevent the President — in his "inherent" C-i-C powers — from housing soldiers in your house (which he could not do under the Third Amendment?  Absolutely nothing.  All he has to do is deem that it is necessary to the War on Terror (whether it is actually necessary or not), and boom – the Third Amendment flies out the window.  What’s next?  The Second Amendment?  The First?

Secondly, the idea that Congress gave the President that authority is an unsatisfactory explanation.  It’s simply not true.   Here’s the "Use of Force" resolution from 9/15/01:

(a) That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Now, conservatives like to talk about "strict constructionism" and all that.  So where is the grant of authority in the above?

It doesn’t exist, and everybody knows it:

Bush’s comments followed a morning of television appearances and a briefing by Attorney General Alberto R. Gonzales, seeking to rebut criticism from Democratic as well as some Republican members of Congress, who have questioned the source of the president’s power to engage in eavesdropping without the involvement of a judge, as required by the 1978 Foreign Intelligence Surveillance Act (FISA.)

Gonzales said that while FISA prohibits eavesdropping without court approval, it makes an exception where Congress "otherwise authorizes." That authorization, he said, was implicit in the authorization for the use of military force in Afghanistan following the Sept. 11 attacks.

In a news conference to respond to Bush’s statements, three Senate Democrats challenged the legal justification for the domestic spying program and said Bush should stick to the FISA process.

"Where does he find in the Constitution the authority to tap the wires and the phones of American citizens without any court oversight?" demanded Sen. Carl Levin (D-Mich.), a member of the Senate Intelligence Committee. He also disputed Bush’s statement in the news conference that checks on his executive power — such as his authority to order the secret surveillance — came from his oath of office and congressional oversight.

"That’s not a check on the executive branch, notifying some members of Congress — if he did — that he’s taken the law into his own hands," Levin said. "That is not a check on the executive branch, nor is the fact that he gets opinions from six lawyers in the executive branch, all under his control, that he can do this."

What’s remarkable about this whole issue is that there has been, by law, since 1972, a provision for obtaining warrants from a secret FISA court.  These warrants are quick and almost never denied.  In fact, since the 1972 FISA Act has been in effect, it has received over 20,000 warrant applications, and rejected only two!

Even more startling, the Bush Administration can even seek warrant approvals from the secreat FISA court retroactively – up to 72 hours after the search or wiretap is done.  Yet the Bush Administration didn’t even do that.

And why not?  The court, as I said, is secret.  The proceedings are secret.  There simply is no security risk.

Now, I’m no fan of the FISA law, but it exists, and it is extremely leniant.  Therefore, the only reason, as far as I can see, for the Bush Administration to ignore the law is because it is engaging in wiretaps that are far beyond the pale.

Bush has defended the practice by saying it has only been done on people with known links to al Qaeda.  When I first heard that, my initial thought was "Yeah. Sez you."  As a country, we have has experience with the Bush Administration and its hyperimaginative sense of who does and who doesn’t have al Qaeda links.

But setting that aside, if Bush’s assertion is true, then it seems to me that getting a warrant from the secret FISA court would be extremely easy.   Again, why didn’t they do it?

And if we’ve been engaging in this practice, where are all the al Qaeda prosecutions?  Why haven’t we made more arrests of these people here at home who have links to al Qaeda?

This is simply a power grab, and a move to an unconstitutional totalitarian form of government.

Anyway, Crooked Timber has a wonderful taxonomy of the rather lame justifications put out by Bush and/or his supporters for this clearly unconstitutional act:

    1. Epochal Shift: “9/11 Changed Everything and so the President can do whatever he likes.”
    2. You Can’t Handle the Truth!: Your Jack Nicholson moment, viz: “Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who’s gonna do it? … I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it!”
    3. Exquisite Regret: “I fully appreciate the strength of the arguments (moral, practical, empirical) that you put before me about the evil nature of torture, arbitrary detention and spying on the very citizens from whom our claim to legitimate government derives. So believe me when I say that I have agonized over these decisions, lain awake at night, analyzed the hypotheticals in detail and now, with a great sense of the weight of the choice I am making, I will sign this piece of paper suspending the rights of anyone whom our staffers feel should be investigated.”
    4. Rubber Stamp: “We obtained a legal opinion from one of our own lawyers. He said it was OK and I believe him. He’s totally objective.”
    5. World Weary: “Oh, puh-leeze. This is nothing new. It’s been going on for years—Americans have no idea how little legal protection they have from arbitrary government surveillance. That’s why I became a libertarian. I still fully support the Government’s right to monitor, lock up, ‘render’ and torture anyone they declare is an enemy combatant, though. I absolutely still don’t trust them to run a Social Security Program or redistribute taxes to the poor, obviously.”
    6. Radical Empiricist: I’m not sure we have all the facts about this, and we should suspend judgment until either more real evidence becomes available or the black GM Suburban pulls up outside my house and bundles me off to a disused Soviet-era facility in Eastern Europe.

Via Atrios, this statement from Senator Reid:

“The President asserted in his December 17th radio address that “leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it.” This statement gives the American public a very misleading impression that the President fully consulted with Congress.

“First, it is quite likely that 96 Senators of 100 Senators, including 13 of 15 on the Senate Intelligence Committee first learned about this program in the New York Times, not from any Administration briefing.

“I personally received a single very short briefing on this program earlier this year prior to its public disclosure. That briefing occurred more than three years after the President said this program began.

“The Administration briefers did not seek my advice or consent about the program, and based on what I have heard publicly since, key details about the program apparently were not provided to me.

“Under current Administration briefing guidelines, members of Congress are informed after decisions are made, have virtually no ability to either approve or reject a program, and are prohibited from discussing these types of programs with nearly all of their fellow members and all of their staff.

“We need to investigate this program and the President’s legal authority to carry it out. We also need to review this flawed congressional consultation system. I will be asking the President to cooperate in both reviews.”

At his press conference today, Bush said "The fact that we’re discussing this program is helping the enemy."  To that, I think Timothy Naftali has the perfect response:

A key goal of the terrorists is to destroy our constitutional system. Our leaders should not be helping them.

What makes the current form of executive overreaching particularly unsettling is that unlike the Cold Warriors, who understood what they were doing was wrong and placed some limits on their secret programs, our present leadership is operating under an expansive theory that the president can do what he pleases to "protect " us, including denying citizens their day in court, the torture of suspects and now the monitoring of our private communications.

Scott Shields:

It’s amazing to me that there can be such a disconnect in Bush’s own head about this. He asks how an Iraqi cannot understand that "it’s important that there be rule of law" while simultaneously arguing that the rule of law does not apply to him when it comes to domestic wiretaps. Like I said, it gave me a chuckle, but it really isn’t funny.

MORE:  Read how conservative blog Redstate lectures everybody on constitutional law . . . and gets it wrong.

LAST WORD (for now) goes to Ben Franklin, speaking from beyond the grave:

"Those who are willing to sacrifice their basic liberties to assure their security deserve neither."