The Powers of the President, Spying and Civil Liberties, Part IV
*** See below for update ***
For just under a week, the arguments have been flying back and forth across this great country of ours regarding the President's use of the National Security Agency to spy on American citizens and other U.S. persons here in the United States. As readers will know from the posts below, my preliminary conclusion was that, contrary to the breathless and deeply irresponsible reports in the MSM, the President has a pretty good, though not unassailable, argument.
From there, however, greater legal minds than mine have done a lot of thinking, a lot of arguing and a lot of research. And, true to the best traditions of the marketplace of ideas that is inherent in our precious First Amendment, slowly a general consensus position that supports the President's case has been formed.
This consensus position is not, of course, shared by all, nor is it so airtight as to preclude argument. However, every indication is that a solid legal argument supporting the President's position has emerged, and, what's more, it has no less than four strong pillars: 1) the President's inherent national security and intelligence-gathering authority pursuant to Article II of the Constitution; 2) the President's war-fighting authority specifically enhanced by the Authorization for Use of Military Force passed by Congress against Al-Qaeda, 3) the President's authority otherwise authorized by statute (i.e. by the AUMF) under the Foreign Intelligence Surveillance Act, and 4) the government's general authority under the Fourth Amendment to conduct reasonable searches. (For a decent summary of these arguments, please see the Justice Department legal memo on point released yesterday; link is below).
Yesterday, one the nation's leading law professors and a man considered one of Liberalism's brightest stars in legal academia, Cass Sunstein of the University of Chicago, spoke at length with (who else?) Hugh Hewitt regarding the legal issues surrounding this matter. Here are the key exchanges (full transcript here):
What the professor is saying here is that given the strength of the President's stance that he has the inherent power to order warrantless searches of U.S. citizens to gather foreign intelligence, when you add to that the wide grant of war-waging power conferred by the AUMF, together they form a strong presumption in favor of Bush's actions.
Professor Sunstein also made two further very important points, the first about the fact that this argument is about the powers of the Presidency as an office and not about President Bush:
Second, the professor passes what I think to be a damning verdict on the behavior of the MSM in this whole matter, a not uncommon occurrence when people view the MSM close up while they are dealing with a subject matter in which they have specialized knowledge:
What does all this mean?
I think, at a minimum, it means that the New York Times' wildly transparent effort to embarrass the President has backfired and in a major way. As has happened many times before, the MSM and its allies in the Democratic Party got themselves hot and bothered and way out on a limb, claiming that the President is acting without regard to the law or civil liberties. However, as the smoke and fury cleared, it became more and more obvious that their claims simply aren't sustainable.
Except in this sense: I suspect that a large portion of the outrage isn't that the President has this power but that this particular president has this power. No doubt the senior senator from Massachusetts would feel differently about the program's utility if the junior senator from Massachusetts occupied the oval office.
The issue is more important than that, and Sen. Kennedy should know better. Let me tell you honestly, I don't much care for Senator Clinton. I don't think she's honest, I don't trust her motives, I think she is still beholden to a lot of 60's era trash ideology and she dresses funny.
But you can bet you bottom dollar that come January 2009, should she be President of the United States, I would want her to have the full powers of the executive to continue waging war against Al-Qaeda.
And so should you.
UPDATE: The Oregonian is reporting in its afternoon street final edition that Supreme Court nominee Sam Alito defended the use of warrantless domestic wiretaps for national security purposes in a legal memo.
I suppose this is part of an on-going attempt to come up with something to oppose a nomination that is otherwise a shoo-in.
However, since the memo dates to 1984, it also conclusively proves that: 1) this debate and so-called scandal are in fact old news, and 2) President Bush is not the first President to use this power, giving the lie to fears about Bush improperly "expanding" the powers of the President.
For just under a week, the arguments have been flying back and forth across this great country of ours regarding the President's use of the National Security Agency to spy on American citizens and other U.S. persons here in the United States. As readers will know from the posts below, my preliminary conclusion was that, contrary to the breathless and deeply irresponsible reports in the MSM, the President has a pretty good, though not unassailable, argument.
From there, however, greater legal minds than mine have done a lot of thinking, a lot of arguing and a lot of research. And, true to the best traditions of the marketplace of ideas that is inherent in our precious First Amendment, slowly a general consensus position that supports the President's case has been formed.
This consensus position is not, of course, shared by all, nor is it so airtight as to preclude argument. However, every indication is that a solid legal argument supporting the President's position has emerged, and, what's more, it has no less than four strong pillars: 1) the President's inherent national security and intelligence-gathering authority pursuant to Article II of the Constitution; 2) the President's war-fighting authority specifically enhanced by the Authorization for Use of Military Force passed by Congress against Al-Qaeda, 3) the President's authority otherwise authorized by statute (i.e. by the AUMF) under the Foreign Intelligence Surveillance Act, and 4) the government's general authority under the Fourth Amendment to conduct reasonable searches. (For a decent summary of these arguments, please see the Justice Department legal memo on point released yesterday; link is below).
Yesterday, one the nation's leading law professors and a man considered one of Liberalism's brightest stars in legal academia, Cass Sunstein of the University of Chicago, spoke at length with (who else?) Hugh Hewitt regarding the legal issues surrounding this matter. Here are the key exchanges (full transcript here):
HH: First, did the authorization for the use of military force from 2001 authorize the president's action with regards to conducting surveillance on foreign powers, including al Qaeda, in contact with their agents in America, Professor?
CS: Well, probably. If the Congress authorizes the president to use force, a pretty natural incident of that is to engage in surveillance. So if there's on the battlefield some communication between Taliban and al Qaeda, the president can monitor that. If al Qaeda calls the United States, the president can probably monitor that, too, as part of waging against al Qaeda.
HH: Very good. Part two of your analysis...If...whether or not the AUMF does, does the Constitution give the president inherent authority to do what he did?
CS: That's less clear, but there's a very strong argument the president does have that authority. All the lower courts that have investigated the issue have so said. So as part of the president's power as executive, there's a strong argument that he can monitor conversations from overseas, especially if they're al Qaeda communications in the aftermath of 9/11. So what I guess I do is put the two arguments together. It's a little technical, but I think pretty important, which is that since the president has a plausible claim that he has inherent authority to do this, that is to monitor communications from threats outside our borders, we should be pretty willing to interpret a Congressional authorization to use force in a way that conforms to the president's possible Constitutional authority. So that is if you put the Constitutional authority together with the statutory authorization, the president's on pretty good ground.
HH: And then I want to jump out of your analysis for a moment, and go to the steel seizure case, and to Justice Jackson's concurrence, because a lot of the analysis is saying the president is acting contrary to Congressional intent, citing some FISA sections, which I think are wrongly read. But nevertheless, if you read the AUMF the way you do, and the Constitution the way it is plausibly read, that would put us in the highest zone of presidential authority, under Justice Jackson's three-part analysis, wouldn't it?
CS: That's right. And just as in the Hamdi case, it's easy to remember the Court said that that was specific authorization to detain our enemies, so too a natural incident of war is the power to engage in surveillance of our enemies. So it would be odd, I think, to understand the authorization not to include the power to engage in surveillance, when al Qaeda is communicating with people who are unfriendly to us.
HH: Now if...would your analysis change if the Congress reconvened, and then passed a specific law saying we did not mean that. Would that...this is for the non-lawyers in our audience...would that in any way affect his inherent Constitutional authority?
CS: No. And then we'd have a huge question, which is whether Congress has the Constitutional power to negate the president's authority to monitor communications from our enemies. And that would be a big and unresolved Constitutional question. It would be unfortunate if the Congress of the United States stopped the president from doing something which Congress already probably is best understood to have allowed the president to do in the authorization to use force.
HH: Now let's move over to the Supreme Court. On Sunday, I posted at my blog, United States V. United States District Court of Eastern Michigan, also known as the Keith Case, because I believe it affirmatively shows that the Supreme Court has not contradicted the president's power here. Do you agree with that analysis?
CS: Yes. That's clearly right. What that Court says is that for domestic surveillance that don't involve foreigners or foreign threats, the president needs a warrant. But now we're onto the last question, which is whether there's a Fourth Amendment requirement of a warrant. And the Supreme Court has never said that in circumstances like this. The lower court seemed to suggest otherwise.
* * *
HH: So if we assume, and I do, that FISA is Constitutional, if it puts into place an arguably exclusive means of obtaining warrants for surveillance of al Qaeda and their agents in the United States, does the president's avoidance of that necessarily make him a law breaker? Or does it make the FISA ineffective insofar as it would attempt to restrict the president's power?
CS: Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.
What the professor is saying here is that given the strength of the President's stance that he has the inherent power to order warrantless searches of U.S. citizens to gather foreign intelligence, when you add to that the wide grant of war-waging power conferred by the AUMF, together they form a strong presumption in favor of Bush's actions.
Professor Sunstein also made two further very important points, the first about the fact that this argument is about the powers of the Presidency as an office and not about President Bush:
There's another point in the background, really, which if you were there, you know, which is that the president believes here that these are very sensitive Constitutional prerogatives. And this isn't a Republican or Democratic thing. This is something that cuts across political affiliations of the president.
Second, the professor passes what I think to be a damning verdict on the behavior of the MSM in this whole matter, a not uncommon occurrence when people view the MSM close up while they are dealing with a subject matter in which they have specialized knowledge:
HH: Do you consider the quality of the media coverage here to be good, bad, or in between?
CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is. As I recall, by the way, I was quoted in the Los Angeles Times, and they did say that in at least one person's view, the authorization to use military force probably was adequate here.
What does all this mean?
I think, at a minimum, it means that the New York Times' wildly transparent effort to embarrass the President has backfired and in a major way. As has happened many times before, the MSM and its allies in the Democratic Party got themselves hot and bothered and way out on a limb, claiming that the President is acting without regard to the law or civil liberties. However, as the smoke and fury cleared, it became more and more obvious that their claims simply aren't sustainable.
Except in this sense: I suspect that a large portion of the outrage isn't that the President has this power but that this particular president has this power. No doubt the senior senator from Massachusetts would feel differently about the program's utility if the junior senator from Massachusetts occupied the oval office.
The issue is more important than that, and Sen. Kennedy should know better. Let me tell you honestly, I don't much care for Senator Clinton. I don't think she's honest, I don't trust her motives, I think she is still beholden to a lot of 60's era trash ideology and she dresses funny.
But you can bet you bottom dollar that come January 2009, should she be President of the United States, I would want her to have the full powers of the executive to continue waging war against Al-Qaeda.
And so should you.
UPDATE: The Oregonian is reporting in its afternoon street final edition that Supreme Court nominee Sam Alito defended the use of warrantless domestic wiretaps for national security purposes in a legal memo.
I suppose this is part of an on-going attempt to come up with something to oppose a nomination that is otherwise a shoo-in.
However, since the memo dates to 1984, it also conclusively proves that: 1) this debate and so-called scandal are in fact old news, and 2) President Bush is not the first President to use this power, giving the lie to fears about Bush improperly "expanding" the powers of the President.
