Author: geoff

A couple of apologists for Bush’s warrantless wiretapping wax indignant in an op-ed in today’s New York Times. Yet when it comes right down to it, former DOJ lawyers David B. Rivkin and Lee A. Casey base everything on the following assertion:

Even if Congress had intended to restrict the president’s ability to obtain intelligence in such circumstances, it could not have constitutionally done so. The Constitution designates the president as commander in chief, and Congress can no more direct his exercise of that authority than he can direct Congress in the execution of its constitutional duties.

But this is nonsense. The US Constitution uses the term “commander in chief” only once:

Section 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

This merely identifies the role of the President in the military command structure of the Army, Navy and Militia. It confers absolutely no powers with respect to any other agencies of government, nor does it specify that this authority is not subject to constitutional and legislative control. Indeed the Supreme Court ruled on this in 1952. The failure of Bush apologists like Rivkin and Casey to even consider this point is significant, as is their reluctance to come right out and claim that FISA is unconstitutional.
(This is a pretty useful background article.)
UPDATE: Marshall Grossman expresses it much better than I did.

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.)

This is from an op-ed in The Washington Times (hardly part of the mythical “liberal MSM”) by Bruce Fein who served in Reagan’s Justice Department and is as conservative as they come:

According to President George W. Bush, being president in wartime means never having to concede co-equal branches of government have a role when it comes to hidden encroachments on civil liberties.
Last Saturday, he thus aggressively defended the constitutionality of his secret order to the National Security Agency to eavesdrop on the international communications of Americans whom the executive branch speculates might be tied to terrorists. Authorized after the September 11, 2001 abominations, the eavesdropping clashes with the Foreign Intelligence Surveillance Act (FISA), excludes judicial or legislative oversight, and circumvented public accountability for four years until disclosed by the New York Times last Friday. Mr. Bush’s defense generally echoed previous outlandish assertions that the commander in chief enjoys inherent constitutional power to ignore customary congressional, judicial or public checks on executive tyranny under the banner of defeating international terrorism, for example, defying treaty or statutory prohibitions on torture or indefinitely detaining United States citizens as illegal combatants on the president’s say-so.
President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms.

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[Via BoingBoing.]