Wednesday, December 21, 2005

Continuing discussion on spying

Bruce Schneier weighs in on the topic here:

Schneier on Security: The Security Threat of Unchecked Presidential Power

It's an excellent article with plenty of choice quotes such as:

This is indefinite dictatorial power. And I don't use that term
lightly; the very definition of a dictatorship is a system that puts a
ruler above the law. In the weeks after 9/11, while America and the
world were grieving, Bush built a legal rationale for a dictatorship.
Then he immediately started using it to avoid the law.

This is, fundamentally, why this issue crossed political lines in
Congress. If the president can ignore laws regulating surveillance and
wiretapping, why is Congress bothering to debate reauthorizing certain
provisions of the Patriot Act? Any debate over laws is predicated on
the belief that the executive branch will follow the law.

This is not a partisan issue between Democrats and Republicans; it's
a president unilaterally overriding the Fourth Amendment, Congress and
the Supreme Court. Unchecked presidential power has nothing to do with
how much you either love or hate George W. Bush. You have to imagine
this power in the hands of the person you most don't want to see as
president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael
Moore or Ann Coulter.

And that is exactly to the point and exactly why my conservative friends are up in arms and why my Republican friends should be as well. Schneier continues further after the editorial with links to many other sites as well as quotes from those sites such as:

NSA watcher James Bamford points out how this action was definitely considered illegal in 1978, which is why FISA was passed in the first place:

When the Foreign Intelligence Surveillance Act was created
in 1978, one of the things that the Attorney General at the time,
Griffin Bell, said -- he testified before the intelligence committee,
and he said that the current bill recognizes no inherent power of the
President to conduct electronic surveillance. He said, ‘This bill
specifically states that the procedures in the bill are the exclusive
means by which electronic surveillance may be conducted.’ In
other words, what the President is saying is that he has these inherent
powers to conduct electronic surveillance, but the whole reason for
creating this act, according to the Attorney General at the time, was
to prevent the President from using any inherent powers and to use
exclusively this act.

Also this from Salon, discussing a 1952 precedent:

Attorney General Alberto Gonzales argues that the
president's authority rests on two foundations: Congress's
authorization to use military force against al-Qaida, and the
Constitution's vesting of power in the president as commander-in-chief,
which necessarily includes gathering “signals intelligence”
on the enemy. But that argument cannot be squared with Supreme Court
precedent. In 1952, the Supreme Court considered a remarkably similar
argument during the Korean War. Youngstown Sheet Tube Co. v.
Sawyer, widely considered the most important separation-of-powers case
ever decided by the court, flatly rejected the president's assertion of
unilateral domestic authority during wartime. President Truman had
invoked the commander-in-chief clause to justify seizing most of the
nation's steel mills. A nationwide strike threatened to undermine the
war, Truman contended, because the mills were critical to manufacturing

The Supreme Court's rationale for rejecting Truman's claims
applies with full force to Bush's policy. In what proved to be the most
influential opinion in the case, Justice Robert Jackson identified
three possible scenarios in which a president's actions may be
challenged. Where the president acts with explicit or implicit
authorization from Congress, his authority "is at its maximum," and
will generally be upheld. Where Congress has been silent, the president
acts in a "zone of twilight" in which legality "is likely to depend on
the imperatives of events and contemporary imponderables rather than on
abstract theories of law." But where the president acts in defiance of
"the expressed or implied will of Congress," Justice Jackson
maintained, his power is "at its lowest ebb," and his actions can be
sustained only if Congress has no authority to regulate the subject at

In the steel seizure case, Congress had considered and rejected
giving the president the authority to seize businesses in the face of
threatened strikes, thereby placing President Truman's action in the
third of Justice Jackson's categories. As to the war power, Justice
Jackson noted, "The Constitution did not contemplate that the Commander
in Chief of the Army and Navy will constitute him also Commander in
Chief of the country, its industries, and its inhabitants."

Like Truman, President Bush acted in the face of contrary
congressional authority. In FISA, Congress expressly addressed the
subject of warrantless wiretaps during wartime, and limited them to the
first 15 days after war is declared. Congress then went further and
made it a crime, punishable by up to five years in jail, to conduct a
wiretap without statutory authorization.

Daniel Solove has more to say on this topic. He approaches Bush's arguments for this power from a legal position:

4. Article II of the U.S. Constitution

Article II of the U.S. Constitution delineates the power of the
Executive, and Bush's argument appears to be that he has the power, as
Commander-in-Chief, to ignore any law he deems a hindrance to his
exercise of that power.

As Marty Lederman describes Bush's argument:

The AG claims that the President has the constitutional
power, under the Commander-in-Chief Clause, to ignore FISA's
prohibition in this context. "There were many lawyers within the
administration who advised the president that he had an inherent
authority as commander-in-chief under the constitution to engage in
this kind of signals intelligence," said Gonzales, speaking on CNN.

I'm not an Article II expert, but this argument strikes me as quite
dubious. If this is true, then what becomes of FISA? Or other laws that
regulate the power of the Executive? Orin Kerr writes that he was "unable to find any caselaw in support of [Bush's Article II] argument."

Speaking as someone who is not trained in the legal profession, I rely heavily on scholars to research and discuss these topics. The Orin Kerr link is a more detailed analysis of the same arguments Solove is making. So, if you wish to delve even further into this topic, then you can certainly do so. Such scholarship is crucial to forming opinions in a democratic society. We know the Bush team's legal positions. It's good to get opposing opinions (note: such opinions are being set forth by both liberal and conservative scholars).

The Washington Post today has an article on how Presidents have often sought to expand the power of the Executive branch of government. From their article:

The tug over executive power traces back to the early years of the
republic, and presidents have traditionally moved to expand their reach
during times of war. John Adams, fearing a hostile France, presided
over the imprisonment of Republican critics under the Alien and
Sedition Acts. Abraham Lincoln suspended habeas corpus during the Civil
War. Woodrow Wilson jailed Socialist Eugene V. Debs, who had run
against him for president, for protesting the entry into World War I.
Franklin D. Roosevelt sent Japanese Americans to internment camps
during World War II. And Ronald Reagan circumvented a Cold War
congressional ban on providing aid to contra rebels in Nicaragua.

...Speaking with reporters traveling with him aboard Air Force Two to
Oman, Cheney said the period after the Watergate scandal and Vietnam
War proved to be "the nadir of the modern presidency in terms of
authority and legitimacy" and harmed the chief executive's ability to
lead in a complicated, dangerous era. "But I do think that to some
extent now we've been able to restore the legitimate authority of the

For Cheney, the post-Watergate era was the formative
experience shaping his understanding of executive power. As a young
White House chief of staff for President Gerald R. Ford, he saw the
Oval Office at its weakest point as Congress and the courts asserted
themselves. But scholars such as Andrew Rudalevige, author of "The New
Imperial Presidency," say the presidency had recovered long before
Cheney returned to the White House in 2001. The War Powers Act, the
legislative veto, the independent counsel statute and other legacies of
the 1970s had all been discarded in one form or another.

living in a time warp," said Bruce Fein, a constitutional lawyer and
Reagan administration official. "The great irony is Bush inherited the
strongest presidency of anyone since Franklin Roosevelt, and Cheney
acts as if he's still under the constraints of 1973 or 1974.

John E. Sununu (R-N.H.) said: "The vice president may be the only
person I know of that believes the executive has somehow lost power
over the last 30 years

...Even before the NSA surveillance program, the Bush administration
has asserted its war-making authority in detaining indefinitely U.S.
citizens as enemy combatants, denying prisoners access to lawyers or
courts, rejecting in some cases the applicability of the Geneva
Conventions, expanding its interrogation techniques to include harsher
treatment and establishing secret terrorist prisons in foreign

"The problem is, where do you stop rebalancing the
power and go too far in the other direction?" asked David A. Keene,
chairman of the American Conservative Union. "I think in some instances
[Bush] has gone too far

Yes, he has and that, my friends, is grounds for impeachment.

No comments: