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.

Friday, December 23, 2005

The Bush justifications for law-breaking (con't)

My post yesterday requested that Bush defenders explain how there can be any limits at all on his power under the theories of Executive Power which they are advocating to argue that Bush had the right to violate Congressional law. Both ReddHedd at Firedoglake and Peter Daou at The Huffington Post joined in that request.

In response, there are two posts from Leon at Red and two posts from Jeff Goldstein at Protein Wisdom, one of which largely relied on what Jeff reverently calls "a long and meticulously argued post" from John Hinderaker at Powerline. Leon also alerted me by e-mail to the issuance yesterday of a Memorandum from the Department of Justice (.pdf) which sets forth the Administration’s legal defense of its behavior.

This is my reply to all of that:

(1) There is not a single bit of authority in any of this for the absurd and dangerous proposition that the President has the right to violate a criminal law passed by Congress. Period. The Administration is trotting out lawyers to make legalistic arguments designed to cloud this extremely clear issue, but none of that can change the fact that Bush defenders are arguing that he has the right to enage in conduct which Congress made it a crime to engage in, and there is nothing in the law which gives a President that right. To the contrary, as one would expect, it has been repeatedly made clear that under our system of Government, the President does not possess the authoritarian right to engage in behavior which Congress expressly prohibits under the law.

Bush defenders are primarily relying upon cases which said that the Executive has authority inherently under the Constitution to order warrantless eavesdropping on Americans. But that is not the issue, and they have to know that. The issue is not whether the President has this authority to eavesdrop without a warrant but whether it is legal for him to do so in the face of a Congressional law which makes it a crime to engage in such conduct. And none of the authorities they cite conclude that the President has such a royal power. Not one.

Marty Lederman has a superb and crystal clear post on precisely this issue. Even if one assumes to be true the dubious proposition that the President possesses inherent constitutional authority to order warrantless surveillance on American citizens, that does not mean that it is legal for him to do so in violation of a criminal statute enacted by Congress. But that is what Bush did here, and there is just nothing which even arguably gives that behavior the color of legality. That’s because we live under the rule of law where not even Presidents are bestowed with the right to engage in conduct which Congressional criminal law expressly prohibits.

(2) The Supreme Court has already addressed this issue fully and completely, in the case of Youngstown Co. v. Sawyer, 343 U.S. 579 (1952) -- a case that I have yet to hear a single Bush defender even acknowledge. And understandably so, since that case expressly said that the President does not have the right to exercise his "inherent executive authority" in contravention of Congressional law.

Anyone who wants to see just how clear the legal issues really are here -- just how plain it is that, as most people likely know intuitively, the President does not have the right to engage in conduct which the Congress prohibits under the criminal law -- should read the Supreme Court’s opinion in Youngstown. It is a clear, straightforward, and easy to understand opinion because the Justices evidently realized that they were articulating the basic principles of how the rule of law -- rather than Executive lawlessness -- is what governs our country and keeps it stable and just. And it literally obliterates every argument head-on which is being advanced now by Bush defenders who are trying to bestow him with the power of law-breaking.

The facts are simple. During the Korean War, American steel workers decided they would go on a nationwide strike, which President Truman believed (accurately) would result in a steel shortage that would seriously impede U.S. national security. To avert that problem, Truman wanted to use the force of the Federal Government to seize the steel factories and use them to continue to produce steel. Truman had previously asked Congress to enact legislation giving him this seizure power, but Congress refused, instead enacting legislation that gave the President some new powers to deal with such problems, but it refused to include the power of seizure.

Unlike George Bush – who simply violates laws in secret that he does not think he should have to comply with – the Truman Administration argued its position in the Federal courts and asked the Supreme Court to rule that he had the "inherent authority" under the Constitution to seize the steel factories despite the fact that the Congress did not want him to do so and thus refused to give him this power.

The Supreme Court said that even though the President may have a claim to some "inherent authority" to seize these factories, once Congress has enacted laws making clear that he cannot do so, the President under our system of Government does not have the right to act outside of the law by violating Congress’ intent. In so ruling, the Court said that the where Congress has the power to legislate in a certain area (as it plainly does with regard to regulating eavesdropping on American citizens), the President is no more permitted to violate that law than anyone else is, even if he claims that doing so is necessary for him to carry out his Executive duties to protect the nation. It really does not get any clearer or more dispositive than this.

I have excerpted the relevant portions of the opinion in the post below, and the rationale of the Court is breathtaking in how applicable it is to the current Presidential law-breaking scandal. It literally takes every argument which is being advanced by the President’s defenders now and rejects them as the by-products of unconstitutional lawlessness which they so plainly are.

The particular excerpts in the post below are highly worth reading, but Justice Jackson’s summary in his Concurring Opinion of the fundamental principle of the rule of law is particularly compelling and important here:

The essence of our free Government is "leave to live by no man's leave, underneath the law" - to be governed by those impersonal forces which we call law. Our Government [343 U.S. 579, 655] is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law.

No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

No principle emerges more clearly from the Constitution, all other founding documents, and the Federalist Papers than the principle that the people, through their Congress, make the law and nobody, including the President, is above it or has the right to violate it. Pro-Bush lawyers can write endless justifications from now until he leaves office, and that principle will still, by itself, resolve all of the issues relating to the Bush Administration’s eavesdropping in violation of the criminal law.

(3) As I have noted before, the Supreme Court, in the 1972 case of United States v. United States District Court for the Eastern District of Michigan et al, 407 U.S. 297 (1972), rejected the Nixon Administration’s claim that it had the authority to eavesdrop on American citizens without a warrant in order to investigate dangerous terrorist groups, and concluded that the Fourth Amendment protects American citizens against exactly such intrusions. Bush defenders object that this case involved the Government’s investigation of domestic terrorist groups, not international terrorist groups like Al Qaeda, and they therefore assert that this case is irrelevant to the current scandal, because it involves international, not domestic, terrorist groups.

But that is not how legal reasoning - or basic logic - works. Merely finding a difference between the case which led to a judicial decision and the current situation does not mean that the reasoning of the judicial decision can be ignored. The difference has to be a meaningful one – it has to be a difference that one can show would prevent the reasoning used in the court case from applying to the present situation.

No Bush defender attempts to do that when shooing away this Supreme Court case which held that the Fourth Amendment bars the Federal Government from eavesdropping on the communications of American citizens. "Oh, this is obviously different," they say, "because here we are talking about international terrorist groups, not domestic ones like were involved there."

So what? It can hardly be said that these Fourth Amendment proections disappear because the Government happens to be investigating an international terrorist group rather than a domestic terrorist group. Domestic terrorists can inflict harm to the country as grave as international terrorists can. Timothy McVeigh blew up a federal courthouse and slaughtered hundreds of Americans. The U.S. has a history of facing down dangerous subversive domestic groups. Domestic terrorist groups can do every bit as much damage to the U.S. as international terrorist groups can. Their bombs blow things up just as effectively. And they are arguably more dangerous, not less, because, by definition, they wield the obvious advantage of working from within the country and being able to blend into its population and institutions.

The focus of the Supreme Court's opinion is on the rights of U.S. citizens to be free of warrantless monitoring and invasion by their Government under the Fourth Amendment. How can it possibly be said that we give up that right just because the Government is investigating a foreign group rather than a domestic group? That makes no sense. The Court held that the crux of the Fourth Amendment is that the Government is barred from eavesdropping on American citizens without prior judicial approval. To breezily wave away that holding of the Supreme Court simply because the Government there was investigating a domestic group rather than an international group -- without even pretending to explain why that matters -- is intellectual dishonesty of the worst sort.

(4) Yesterday's Department of Justice Memorandum claims that the President complied with FISA because FISA specifically allows the Government to eavesdrop in contravention of its provisions as long as Congress enacts a new law allowing the Government to do so. And Congress did exactly that, claims the DoJ, when it authorized the Administration to use force in Afghanistan and against Al Qaeda, because that law ("AUMF") – which everyone quite obviously thought at the time was about whether the U.S. could invade Afghanistan and use military force to stop Al Qaeda, not whether the Government could eavesdrop on American citizens at home in violation of FISA – implicitly (i.e., without any saying or realizing it) allowed the Administration to eavesdrop on American citizens without obtaining the judicial approval required by FISA.

That is not even a serious argument, and the fact that the Administration is touting it shows its contempt for the rule of law. Every fact demonstrates that the Congress did not intend to give authority to the President to violate FISA when enacting that resolution, and did not believe it was doing it.

First, at the same time that the AUMF was enacted, the Patriot Act was also enacted, a primary purpose of which was to liberalize FISA with regard to the use of electronic surveillance. The assumption of liberalizing FISA was obviously that it would be the framework for the Governments’ eavesdropping. If Congress were giving the Administration authority under the AUMF to eavesdrop outside of FISA, nobody would have needed the Patriot Act to liberalize FISA standards. That the Congress bothered to alter FISA standards under the Patriot Act illustrates how insultingly frivolous it is to claim that Congress intended to authorize the President to eavesdrop outside of FISA.

Secondly, it was revealed yesterday that when the AUMF was being drafted, the Administration wanted Congress to grant it the authority to use its war powers inside the U.S., and Congress refused to give that authority. For the Administration to now claim that it had the authority from Congress which Congress actually expressly refused to give it is about as dishonest as it gets. As Justice Frankfurter said in his Concurring Opinion in Youngstown:

It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress.

Finally, not a single Senator has said that they discussed at the time that the AUMF was enacted that they were giving the President an exemption from FISA, and scores of Senators have said that this is the opposite of what they understood they were doing when they enacted AUMF. On its face, that law allows the President to use military force against Afghanistan and Al Qaeda, and does not "amend" FISA to allow the President to eavesdrop on American citizens without bothering to comply with it.

(5) Even if the President believes that a particular Congressional law is invalid because it seeks to regulate an area which the President should control, this does not mean that the President is justified in secretly breaking that law because he decided he does not need to abide by it.

If the President really believed that the Executive has full constitutional power in the area of surveillance on American citizens and that Congress has no power, he could have gone to a Federal Court and asked it to declare FISA unconstitutional on the ground that it usurps executive authority, or he could have publicly declared his right to violate FISA – just as Harry Truman did when he wanted to seize the steel factories and thus allowed the federal courts to rule on its legality. Bush did not do that. Instead, he just broke the law, hoped nobody would find out, and even tried to prevent newspapers from reporting it when they did find out.

Constitutional disputes are for the judiciary to resolve, and they resolve these sorts of separation-of-power issue all the time. If the President decides that a law is unconstitutional, the solution is to seek a judicial declaration that this is the case – not to secretly break the law, and then, when he is caught, claim that he was allowed to break the law because it’s not a valid law anyway. That is what criminals do who break the law -- they secretly break the law, try not to get caught, get caught, and then hire lawyers to find a way to keep them out of jail. Lawyers then argue that the law is unconstitutional and the defendant therefore can’t be punished even if he broke the law.

Lawyers can find arguments for anything. If a President can secretly violate the law and do so with impunity – as long as he can get some lawyers somewhere to come up with a retroactive legalistic justification in order to give the appearance that there is at least a "legal dispute" over this authority – then the rule of law really does not exist. Lawyers can always create legal disputes, literally with regard to anything.

The self-evident strategy of the Bush defenders is to cloud the extremely clear fact of Bush’s illegal conduct with so many legalistic justifications that people will throw up their hands and decided that this is nothing more than an esoteric lawyer game, not a serious threat to the founding principles of the nation and to the rule of law. But the principle that the President does not have the right to engage in conduct which the Congress prohibits under our criminal laws is one that is as clear as it is critical to our system of government, and it is urgent that this clarity be maintained and the rule of law enforced.

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