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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, March 11, 2006

The law as "an important tool"

By Anonymous Liberal

Defenders of the NSA warrantless surveillance program want to have their cake and eat it too. They insist that the NSA program is legal but are entirely unwilling to acknowledge the logical consequences that necessarily follow. Once you've dispatched with the specious argument that the AUMF somehow provided the president with the authority to bypass FISA--an argument which David Kris' memorandum definitively puts to rest--you are left with a simple, undeniable truth: either this program is illegal, or FISA is unconstitutional.

The Bush administration and its apologists, however, are simply unwilling to acknowledge this. In Friday's USA Today, the loathsome Senator Pat Roberts wrote the following in an op-ed on the NSA controversy:

While Congress enacted the Foreign Intelligence Surveillance Act to establish procedures for foreign intelligence surveillance, this law did not, indeed cannot, extinguish the president's constitutional powers. FISA provides one way for him to conduct foreign intelligence surveillance, but not the only way.

Notice how Roberts sidesteps the issue of FISA's constitutionality. Rather than acknowledge the obvious logical consequence of his argument--that FISA is unconstitutional--he instead suggests that FISA merely "provides one way" to conduct foreign intelligence surveillance and that the President is free to use others. This is a variation on the "many tools" talking point that the White House has been using for some time now. For example, in his January 26 press conference, the President said the following:

And FISA's still an important tool. It's an important tool, and we still use that tool. But, also -- and I looked. I said, 'Look, is it possible to conduct this program under the old law?' And people said, 'It doesn't work in order to be able do the job we expect to us do.' And so, that's why I made the decision I made. And, you know, 'circumventing' is a loaded word. And I refuse to accept it, because I believe what I'm doing is legally right.

(Speaking of tools, how did this guy ever get to be the leader of the free world?) In this breathtakingly incoherent response, the President admits that the NSA program is inconsistent with FISA, but at the same time suggests that FISA is important, that it is just one tool in his executive toolbox. This is, to put it mildly, totally absurd. FISA expressly and unambiguously provides that its procedures "shall be the exclusive means by which electronic surveillance . . . may be conducted." In other words, FISA is not a tool, it's THE tool.

This exclusivity provision is not some minor detail or statutory afterthought. It is the key to the entire FISA framework, a provision that, if removed, would render the statute meaningless.

It's important to understand that, prior to the passage of FISA, the only thing constraining the president's ability to conduct foreign intelligence surveillance domestically was his own pledge to uphold the 4th amendment, a pledge which a number of presidents (particularly Nixon) did not take very seriously. The purpose of FISA was to protect the constitutional rights of the American people by imposing reasonable oversight requirements on the use of this executive power. This can only be done by providing exclusive procedures for conducting this sort of surveillance.

If FISA's procedures are not exclusive, if executive branch officials can choose whether to utilize FISA or some alternative protocol of their own design, they will clearly only comply with FISA in those instances where they are sure the necessary factual predicates are met; in all other instances they will use their own secret alternative protocol, which does not require judicial approval. Having a two-track system makes a mockery of the statutory scheme. The exceptions swallow the rule and render it meaningless.

President Bush and Senator Roberts know this, of course, but they continue to insult our intelligence by pretending that FISA still has a useful role to play in a world where the president has the power to conduct exactly the sort of surveillance that FISA forbids. Under the legal theories these men have publicly endorsed, FISA is unconstitutional. But Bush and his defenders refuse to own up to this fact because they know that a number of embarrassing consequences logically flow from it.

They realize it would mean scrapping a statutory framework that has served us well for 28 years and has never been seriously challenged. They know it would mean the entire four year debate over the Patriot Act was a colossal waste of time. And, perhaps most significantly, they know that if FISA is unconstitutional, so too are a great many other laws which they have no desire to call into question (at least at the moment). So instead they proclaim that the NSA program is legal and willfully ignore all the logical consequences of that proclamation.

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