The Lantern Brigade: Bush's NSA Hubris

Published on Sunday, January 22, 2006

by the Progressive

by Matthew Rothschild

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 warrant-less 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 warrant-less 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 ‘in the United States and’ after ‘appropriate 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 warrant-less 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 ‘necessary 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.