One two three war, what the hell’s impeachment for? [VIOLENTLY UPDATED]
From today’s WSJ (subscription only). “Abolish FISA”:
Whatever happened to “impeachment”? Only two months ago, that was the word on leading Democratic lips as they assailed President Bush for “illegal” warrantless NSA wiretaps against al Qaeda suspects. But at Monday’s Senate hearing on the issue, the idea never even made an appearance.
The reason isn’t because liberal critics have come to some epiphany about the necessity of executive discretion in wartime. The reason is they can read the opinion polls. And the polls show that a majority of Americans want their government to eavesdrop on al Qaeda suspects, even—or should we say, especially—if they’re talking to one of their dupes or sympathizers here in the U.S.
In short, the larger political battle over wiretaps is over, and the President has won the argument among the American people. We hope Dan Bartlett, Steve Hadley and other White House message-makers notice the difference between this outcome, on a matter on which they bothered to fight, and so many other controversies when they ceded the field to their opponents (“torture,” Joe Wilson).
All the more so because the policy debate over Presidential authority continues, and on a dangerous path. Judging by Monday’s hearing, Senators of both parties are still hoping to stage a Congressional raid on Presidential war powers. And they hope to do it not by accepting more responsibility themselves but by handing more power to unelected judges to do the job for them.
The preferred vehicle here is an expansion of the 1978 Foreign Intelligence Surveillance Act, or FISA, the Carter-era law that imposed judicial consent for domestic wiretaps during the Cold War. “If you believe you need new laws, then come and tell us,” Senate Democrat Pat Leahy told Attorney General Alberto Gonzales during Monday’s hearing. Chairman Arlen Specter and Members in both parties seemed to be saying, “We’re from Congress and we’re here to help you.”
But note well that the Members aren’t talking about sharing responsibility themselves for wiretap decisions. That they want no part of. The leadership and Intelligence Committee chairs were already briefed numerous times on the NSA program, only to have several of them deny all responsibility when the story was leaked. Intelligence Vice Chairman Senator Jay Rockefeller (D., W.Va.) even wrote his own not-my-fault letter that he kept secret until the story broke, when he released it in order to embarrass the Bush Administration. The real message of this episode is: “We’re from Congress and we’re here to second-guess you.”
What FISA boils down to is an attempt to further put the executive under the thumb of the judiciary, and in unconstitutional fashion. The way FISA works is that it gives a single judge the ability to overrule the considered judgment of the entire executive branch. In the case of the NSA wiretaps, the Justice Department, NSA and White House are all involved in establishing and reviewing these wiretaps. Yet if a warrant were required, one judge would have the discretion to deny any request.
FISA is the intelligence equivalent of asking battlefield commanders in Iraq to get a court order before taking Fallujah. “We can’t afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive al Qaeda operatives in real time,” as Mr. Gonzales put it.
We already know FISA impeded intelligence gathering before 9/11. It was the reason FBI agents decided not to tap the computer of alleged 20th hijacker Zacarias Moussaoui. And it contributed to the NSA’s decision not to listen to foreign calls to actual hijacker Khalid al-Midhar, despite knowing that an al Qaeda associate by that name was in the country. The NSA feared being accused of “domestic spying.”
Passed in the wake of the infamous Church hearings on the CIA, FISA is an artifact of post-Vietnam and post-Watergate hostility to executive power. But even as Jimmy Carter signed it for political reasons, his own Attorney General declared that it didn’t supercede executive powers under Article II of the Constitution. Every President since has agreed with that view, and no court has contradicted it.
As federal judge and former Deputy Attorney General Laurence Silberman explained in his 1978 testimony on FISA, the President is accountable to the voters if he abuses surveillance power. Fear of exposure or political damage are powerful disincentives to going too far. But judges, who are not politically accountable, have no similar incentives to strike the right balance between intelligence needs and civilian privacy. This is one reason the Founders gave the judiciary no such plenary powers.
Far from being some rogue operation, the Bush Administration has taken enormous pains to make sure the NSA wiretaps are both legal and limited. The program is monitored by lawyers, reauthorized every 45 days by the President and has been discussed with both Congress and the FISA court itself. The Administration even decided against warrantless wiretaps on al Qaeda suspects communicating entirely within the U.S., though we’d argue that that too would be both constitutional and prudent.
Any attempt to expand FISA would be the largest assault on Presidential power since the 1970s. Congress has every right to scrutinize the NSA program and cut off funds if it wants to. But it shouldn’t take the politically easy route of passing the buck to the judiciary and further limiting the President’s ability to defend America. Far from expanding FISA, Congress could best serve the country by abolishing it.
Regular readers of this site will, I hope, recognize in the Journal’s succinct piece many of the arguments I have been making here for several weeks—the two most important of which, from my perspective, are these:
1) That by making the argument that the President is required to go through a FISA warrant process for gathering foreign intel wherein one side of the communication takes place within the US, critics of the program are, in effect, attempting to turn an Executive war power (signals intel authorization) into a domestic law enforcement power—and so expands the scope of their power extraconstitutionally (even as they then hand the reins over to the judiciary, which, sadly, too many legislators, especially those on the liberal-Democrat side of the aisle, often look to as a kind of superlegislature for liberal causes). This, in turn, takes power away from the executive branch; and 2) FISA was NEVER INTENDED to supercede a President’s Constitutional authority (numerous lower court rulings have deferred to that presumed authority with regard to foreign intel surveillance)—and, when extended into the realm of military surveillance in a time of war, may well be unconstitutional on its face.
Critics of the program—mostly civil libertarian absolutists, partisan Democrats, and constitutional law specialists—all claim to hold dear the rule of law in proclaiming that the administration may have authorized a program that violates both the 4th Amendment and several FISA clauses (using hypothetical scenarios to make their points), and yet all are able to dismiss (or, at least, worry) the President’s Constitutional Article II inherent authority (put into play by the passing of the AUMF), and to minimize the already available and Constitutionally-provided checks (impeachment, cutting off funding) on the so-called “imperial” powers of the President —powers granted him, mind you, not by Richard Nixon or J Edgar Hoover, but rather by the founding fathers, and in spite of the heady idealism of the 60s counterculture movement that, once it matured into a vocal branch of the Democratic party, has consistently attempted to move government power disproportionately away from the executive branch and toward the legislative and judicial branches in an effort to reshape the balance of power. That the Bush administration has made it a point of pride to push back is not, as the saying goes, a bug, but rather a feature).
(h/t Terry Hastings)
For those of you interested, you can find my previous posts on the topic (which include comprehensive sourcing of primary and secondary documents) here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.
related: Orin Kerr, “Congressional Reaction to NSA Briefing”; In From the Cold, “The devil’s in the details”; and Jawa Report, “Details of NSA Surveillance Coming Soon to a Newspaper Near You”
(h/t PJ NSA Files)
update: Orin Kerr sees this FISA court “concern” over Bush / Gonzales public statements (from the WaPo) as evidence of a point of legal interest in the NSA foreign surveillance story.
I think this is only the case if FISA holds jurisdiction over the program in question, which I don’t think it does (except when finessed within that jurisdiction by the positing of carefully crafted hypotheticals). Instead, I continue to believe that the administration’s strategy, in light of the initial NYT leak, has been to bait FISA advocates (who tend to extol judicial and legislative power) into a debate that will end with 1) program critics looking weak on national security insofar as they insist on being deferential, in times of immediate danger, to unclear and contested legal statutes that raise serious separation of powers concerns, rather than in taking aggressive actions that could very well have prevented follow up attacks (couple this with their concurrent resistance to the PATRIOT Act); and 2) reassert executive power while, happily, bringing public discourse back to the topic of national defense and security, where the GOP excels.
Should a forced legal battle end with FISA being ruled unconstitutional (insofar as its staunchest advocates pursue the claim that it constrains the President’s ability to authorize particular military operations, even after Congressional authorization), so much the better.
[update 2: In a post bemoaning having certain sites on his blogroll, Chris Lawrence reduces my position on the NSA foreign surveillance story to this: “Shorter Jeff Goldstein and Wall Street Journal editorial board: Separation of powers is for idiots.”
[How Chris got my position so completely wrong is curious given the number and length of my postings here on the topic. Though his being an academic, it is certainly possible he felt he could simply fall back on his ability to quickly master and distill what he took to be my points in order to dismiss them casually and condescendingly—an assumption that, in this case, I think, served him rather poorly.
[For the record, my position is completely opposite the position Chris ascribes to me. Not only do I not think the separation of powers is for idiots, but I believe this entire dustup is about protecting the separation of powers and keeping them properly balanced; whereas critics of the program who keep deferring to FISA seem to suggest that a President under wartime conditions (which state Congress placed the country in when it approved the AUMF) is answerable to a statute that both its legislative history and a recent FISA Review court noted was never meant to constrain the CiC’s Article II powers (powers Chris characterizes as “some sort of complete hand-waving, ‘anything goes’ ... doctrine). But my position on the separation of powers question has remained clear: I believe that the appeal to FISA we are now seeing from partisan Dems, civil liberties absolutists, some congressional law scholars, and certain members of congress (from both parties) is nothing more than a transparent attempt by the legislative branch to co-opt CiC military command authority, which they then intend to outsource to an unelected FISA judge as an extraconstitutional “check” on what they are now calling imperial “unitary” powers (which, to the best of my knowledge, date back to George Washington).
[Signals intel is clearly a military operation, and the CiC is clearly provided the mandate to use the military in a way he sees fit to fight a war, provided the usage is legal. The AUMF directed him to use all legal measures within his power to protect the country both at home and abroad. Which is why, should Bush ask Congress to “expand” FISA to “allow” him to to use powers already Constitutionally apportioned him, he would be tacitly granting FISA, a congressional statute, precedence over his Article II powers—a move that disrupts the balance of powers established by the Constitution, pulling it (in my mind, unconstitutionally) in the direction of the legislative branch.
[It is important to remember that congressional checks on the president’s wartime strategic military decision-making are already constitutionally available: the Congress, if they believe the President has acted illegally, can file articles of impeachment; or they can cut funding for the program they disagree with. Tellingly, they have taken recourse in neither of these remedies to date—preferring instead to apply public pressure by creating an appearance of impropriety in the hopes Bushco will strike a compromise, and FISA can be “expanded” to grant the President authority he (and the DoJ) claim he already has.
[Even so, the NSA, the DoJ, and the administration have shown a deference to the FISA court, and have mentioned on numerous occasions that when the specific situtation required them to file for a FISA warrant, they have done so. They have submitted the program to constant review. And they have briefed key members of Congress on it on more than dozen occasions.
[Ironically, Lawrence cites Wickard v Filburn and commerce clause overreach as an analogy of the kind of wildly imperialist and unchecked authority he believes the founding fathers granted the President when they gave him the Article II mandate to protect the country ; but if he read my site with any regularity, he would have known that I have been quite critical of expansion of the commerce clause—and cited Raich as one of the worst decision of the last 50 years. But how that case applies here is unclear. Because if anything, this administration has made an attempt to bring back into balance the separation of powers; those who defer to FISA, which may prove to be unconstitutional, make clear that those powers have drifted toward the legislature and the judiciary over the years.]