Glenn Greenwald on Bush, FISA, and Youngstown Co. vs. Sawyer

Must-read piece by Glenn Greenwald, describing in detail how the 1952 Supreme Count decision in Youngstown Co. vs. Sawyer set out the limits on presidential power. And the bottom line:

If the President really believed that the Executive has full constitutional power in the area of surveillance on American citizens and that Congress has no power, he could have gone to a Federal Court and asked it to declare FISA unconstitutional on the ground that it usurps executive authority, or he could have publicly declared his right to violate FISA – just as Harry Truman did when he wanted to seize the steel factories and thus allowed the federal courts to rule on its legality. Bush did not do that. Instead, he just broke the law, hoped nobody would find out, and even tried to prevent newspapers from reporting it when they did find out.

In a comment to my earlier piece on this subject, Charlie from Colorado pointed out that two prominent legal authorities had argued that Bush did have the authority he claimed. But the first of these (Professor Cass Sunstein of the University of Chicago Law School) offers a very tentative assessment, without considering whether any SCOTUS rulings might establish any constitutional framework for evaluating Bush’s behaviour. The second, ex-Clinton associate attorney general John Schmidt, illustrates the problem of disentangling conflicting sources. He wrote:

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, “FISA could not encroach on the president’s constitutional power.”

It’s unfortunate that he didn’t identify which of the many FISC opinions this came from, because it seems to fly in the face of Youngstown Co. vs. Sawyer. In that case, as Greenwald puts it…

The Supreme Court said that even though the President may have a claim to some “inherent authority” [to act], once Congress has enacted laws making clear that he cannot do so, the President under our system of Government does not have the right to act outside of the law by violating Congress’ intent. In so ruling, the Court said that the where Congress has the power to legislate in a certain area (as it plainly does with regard to regulating eavesdropping on American citizens), the President is no more permitted to violate that law than anyone else is, even if he claims that doing so is necessary for him to carry out his Executive duties to protect the nation. It really does not get any clearer or more dispositive than this.

Indeed Sunstein seems to concede this:

On […] the question is how to square the AUMF with FISI. It isn’t unreasonable to say that the more specific statute, FISA, trumps the more general, so that the wiretapping issue is effectively governed by FISI.

(But then he starts waffling. Bad choice, Charlie.)