by
Matthew Rothschild
Published on Sunday, January 22, 2006 by the Progressive
The Bush team keeps granting itself more and more power, including the
power unilaterally to deem a law unconstitutional and then to flout
that law.
That’s
essentially what the Justice Department said in the 41-page white paper
on the NSA’s warrantless spying program which it released on January 19.
With the Bush
Administration’s typical white-is-black Orwellian speak, it says that
this program is ‘consistent with civil liberties,’ even though it
acknowledges that ‘individual privacy issues at stake may be
substantial.’
For Bush and Cheney and Ashcroft, anything goes(including privacy(in the fight against Al Qaeda.
‘The Government’s
overwhelming interest in detecting and thwarting further Al Qaeda
attacks is easily sufficient to make reasonable the intrusion into
privacy,’ says the Justice Department document, entitled ‘Legal
Authorities Supporting the Activities of the National Security Agency
Described by the President.’
The gist of the
Justice Department’s argument is that the President’s ‘inherent
constitutional authority as Commander in Chief’ and the Congressional
Authorization of Military Force (AUMF) right after 9/11 give him all
the power he needs to eavesdrop in the United States without a warrant.
It’s not an easy
argument to make, since the FISA law, as amended, requires that FISA is
the ‘exclusive means’ by which the NSA may engage in domestic
surveillance. FISA requires a warrant except in the first fifteen days
of an emergency.
Here is the
argument. The Justice Department says ‘FISA expressly contemplates that
the Executive Branch may conduct electronic surveillance outside FISA’s
express procedures if and when a subsequent statute authorizes such
surveillance.’
That ‘subsequent
statute,’ the Justice Department says, is the Congressional
Authorization of Force. But that authorization doesn’t mention amending
FISA. And on top of that, the Administration tried to get language into
that authorization that would have permitted such warrantless
eavesdropping, but the Senate didn’t go along, as former Senator Tom
Daschle has noted.
‘Literally
minutes before the Senate cast its vote, the Administration sought to
add the words âin the United States and’ after âappropriate force’ in
the agreed-upon text,’ Daschle wrote in The Washington Post on December
23. ‘I could see no justification for Congress to accede to this
extraordinary request for additional authority. I refused.’
Yet this is the very authority that the Justice Department now claims for the spying!
Nor has the Administration sought to amend FISA to reflect its current interpretation.
Why bother?
Instead, it pulls out this trump card: Even ‘if FISA could not be read
to allow the President to authorize the NSA activities during the
current Congressionally authorized armed conflict with Al Qaeda, FISA
would be unconstitutional.’
Why? Because it interferes with the President’s power as Commander in Chief.
Here the Justice Department shows just how unlimited it believes that power is.
‘The President
has inherent constitutional authority to conduct warrantless searches
and surveillance within the United States for foreign intelligence
purposes,’ the Justice Department asserts. It says there is a ‘serious
constitutional’ question as to whether such spying ‘is such a core
exercise of Commander in Chief control over the Armed Forces during
armed conflict that Congress cannot interfere with it at all.’
Clearly, the
Justice Department believes that to be the case. ‘The NSA activities
lie at the very core of the Commander in Chief power,’ it states. This
is especially true in wartime, it argues.
But get this: The Justice Department thinks the President may be able to spy on us without warrants even when there is no war!
‘Even outside the
context of wartime surveillance of the enemy, the source and scope of
Congress’s power to restrict the President’s inherent authority to
conduct foreign intelligence is unclear,’ it states. ‘The President’s
role as sole organ for the Nation in foreign affairs has long been
recognized as carrying with it preeminent authority in the field of
national security and foreign intelligence . . . . It is clear that
some Presidential authorities in this context are beyond Congress’s
ability to regulate.’
Then some fancy
legal footwork. The Justice Department argues that because of the legal
doctrine of ‘constitutional avoidance,’ whereby when there’s a clash
between statutes that could create a constitutional dispute, those
statutes should be read in such a way as to avoid the collision, the
FISA act and the authorization of force must be interpreted the
President’s way.
‘Even if these
provisions were ambiguous, any doubt as to whether the AUMF and FISA
should be understood to allow the President to make tactical military
decisions to authorize surveillance outside the parameters of FISA must
be resolved to avoid the serious constitutional questions that a
contrary interpretation would raise,’ it states.
How convenient!
The Justice
Department also willfully and repeatedly misreads the Supreme Court’s
2004 Hamdi decision, the one in which Sandra Day O’Connor, writing for
the majority, said, ‘A state of war is not a blank check for the
President when it comes to the rights of the Nation’s citizens.’
The Justice
Department said the Hamdi decision affirms that the Congressional
authorization of force ‘gave its express approval to the military
conflict against Al Qaeda and its allies and thereby to the President’s
use of all traditional accepted incidents of force in this current
military conflict(including warrantless electronic surveillance to
intercept enemy communications both at home and abroad.’
But the Court did not, even by inference, endorse such surveillance.
Hamdi was
captured on the battlefield opposing the Untied States, and the Court
stressed that in this ‘limited category,’ the detention of such a
person ‘is so fundamental and accepted an incident to war as to be an
exercise of the ânecessary and appropriate force’ Congress has
authorized the President to use.’
It’s quite a
reach from holding a battlefield combatant to eavesdropping on U.S.
citizens, especially when Congress had the opportunity to give the
President such authority and declined to do so. The Court in Hamdi also
intentionally sidestepped questions about the reach of the President’s
commander in chief powers.
And the Court in
Hamdi affirmed the role of the judiciary, a role that Bush wants to cut
out as far as NSA spying goes. ‘We necessarily reject the Government’s
assertion that separation of powers principles mandate a heavily
circumscribed role for the courts,’ O’Connor wrote. And she explicitly
warned about an Executive Branch approach that ‘serves only to condense
power into a single branch of government.’ (O’Connor italicized the
word “condense.”)
In its totality,
the Justice Department’s defense of NSA spying is dishonest and
disgraceful. It betrays a lack of respect for our system of checks and
balances. And it would empower the President to spy on us any time he
want (without a warrant(during wartime and peacetime. Congress and the
courts cannot let this stand.
Matthew Rothschild has been with The Progressive since 1983. His McCarthyism Watch web column has chronicled more than 150 incidents of repression since 9/11. His exclusive web commentaries, This Just In, run on the website several times a week. Monday through Friday, he does two-minute web radio commentaries that are also available as podcasts, as is his weekly half-hour interview show, Progressive Radio. He co-founded and directs the Progressive Media Project.
© 2006
The Progressive