Date: August 11, 2006 9:11:26 PM PDT
Subject: [IPCUSA] Supremes Decimate Bush's Spying Argument
Supremes Decimate Bush's Spying Argument
READ MORE: Supreme Court
When the Supreme Court rejected President Bush's executive power claims
in last month's decision invalidating the Guantánamo military tribunals,
it also shredded the administration's arguments for domestic spying. Now
a bipartisan group of legal experts and former government officials are
explaining to Congress exactly how the court's ruling affects the NSA's
illegal domestic spying program.
President Bush (and his attorneys) argue that he can bypass the law
because of his wartime authority as Commander in Chief. That is a
fundamental part of the administration's defense of everything from
unlimited detentions in Cuba to warrantless spying in Nebraska. For
spying, the Justice Department argues that the 2001 Authorization to Use
Military Force (AUMF) actually authorized the spying program by
implicitly repealing the 1978 Foreign Intelligence Surveillance Act
(FISA), which makes warrantless wiretapping a felony. Second, they claim
that the President has inherent authority to wage war under Article II
of the Constitution, and can therefore disregard any statutes that
restrict his ability to do so.
Now turn to the Court's Guantánamo decision, /Hamdan/. The
administration was first claiming that the AUMF implicitly authorized
Bush to create his military commissions, and second that the President
has inherent constitutional powers to contravene existing statutes in
order to defeat the enemy in times of war. Sound familiar?
The Court ruled that neither of these arguments has any merit. The
majority opinion concluded that "there is nothing in the text or
legislative history of the AUMF even hinting that Congress intended to
expand or alter" the Uniform Code of Military Justice--clarifying the
fact that the President had no right to create commissions that violate
pre-existing military law. In response to the administration's Article
II claim, the Court found that although the President has the power to
convene military commissions without congressional authorization, he may
not disregard what limitations Congress has placed on his powers.
Given /Hamdan/'s sweeping rejection of these two core arguments, it
would seem that Bush's case for wiretapping is toast. But Bush's lawyers
don't think so. They are straining to argue that NSA situation is
totally different from Hamdan.
Enter some of the most eminent constitutional scholars in the country.
This letter
is signed by professors from law schools like Harvard, Yale, and
Stanford, many with a history of government service, and it
systematically rebuts the government's attempts to distinguish the NSA
case from /Hamdan/.
As for the government's first argument, the case for wiretapping under
the AUMF is actually weaker than its case for military commissions.
Wiretapping is like the military commissions in that there is "nothing
in the text or legislative history" of the AUMF indicating that Congress
intended to repeal FISA's guidelines. Unlike military commissions,
however, the law governing wiretapping is crystal clear. As the law
professors aptly remind us: "FISA expressly declares that FISA itself
prescribe[s] the 'exclusive means' of engaging in electronic
surveillance." If the AUMF could not implicitly alter a set of vague
guidelines about military commissions, then it certainly could not
overturn a clear rule restricting spying.
Furthermore, FISA provides a special wartime surveillance provision that
authorizes surveillance outside of the FISA guidelines for only 15 days
after a declaration of war. It was clearly the intent of Congress to
limit the President's surveillance powers even in times of war. If Bush
was interested in modifying this provision for wiretapping, he could
lawfully do so by amending the 15-day provision set-forth by congress.
The President's Article II argument is equally dubious. He contends
that, unlike the rules governing military commissions--which were
enacted in compliance with Congress's Article I authorities--Congress
did not even have the constitutional authority to enact FISA. According
to the letter, "this argument borders on the frivolous." FISA has been
in place for many years, passed by Congress and signed by the President,
and has operated appropriately since its inception. It was enacted
pursuant to Congress' long recognized powers to regulate communication
between states and nations, to make legislation "necessary and proper"
to carry out other constitutional powers, and to make rules governing
the country's military forces.
Finally, the DOJ argues that FISA prevents the President from performing
his duty to defend the Nation. But as the letter argues, "the President
also has a duty to take care that Congress's laws are faithfully
executed. And the duty to defend the Nation does not give the President
a blank check to ignore congressional statutes or the Constitution."
Concurring opinions from Justices Kennedy and Breyer made the same
points. Justice Kennedy stated that judicial enforcement of rules laid
down by Congress, even during national emergencies, "gives some
assurance of stability in time of crisis. The Constitution is best
preserved by reliance on standards tested over time and insulated from
the pressures of the moment. These principles seem vindicated here, for
a case that may be of extraordinary importance is resolved by ordinary
rules." As Justice Breyer put it:
"Where, as here, no emergency prevents consultation with Congress,
judicial insistence upon that consultation does not weaken our Nation's
ability to deal with danger. To the contrary, that insistence
strengthens the Nation's ability to determine--through democratic
means--how best to do so. The Constitution places its faith in those
democratic means. Our Court today simply does the same."
The same could be said of the process of judicial review: As I've argued
in this space, oversight by courts ensures (among other things) that the
executive is doing a competent job in its law-enforcement efforts
against terrorism. The overwhelming majority of scholars agree that the
administration has no argument left in defense of the NSA Program after
/Hamdan/--making the real question whether the administration can
somehow evade judicial review (via the state secrets doctrine
or the provisions in the Specter bill that would send our case
a secret court
The administration has argued that allowing judicial review is as
dangerous to the national security as following the rules about
wiretapping laid down by Congress in FISA. Luckily--as /Hamdan/
proved--the last word on these issues belongs to the courts.
[Non-text portions of this message have been removed]
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