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, January 20, 2006

The Justice Department tries again

On December 22, 2005, the Department of Justice issued a 5-page letter outlining its arguments as to why the President’s NSA warrantless eavesdropping program was legally justified. Those arguments have been thoroughly rebutted, including by the independent and nonpartisan Congressional Research Service (which I discussed briefly here) ; this letter from 14 law professors and former government lawyers; and this comprehensive compilation from The Left Coaster of all the arguments marshaled in the blogosphere against the DoJ’s legal position, including the numerous posts I have written on all of these legal issues.

In response to all of these arguments, the DoJ returned to the drawing board and yesterday released a 42-page single spaced letter (.pdf) elaborating on its original arguments, adding a few new ones, and advancing some positions which clarify both what this scandal is about and the unprecedented, truly limitless powers claimed by the Administration. The most notable new component of the DoJ’s position is its declaration that, if necessary, it will attack the constitutionality of FISA itself if it is found that FISA "impedes" the President’s power to eavesdrop on Americans as part of the fight against terrorism (Letter at pp. 3 & 35).

Most of the legal arguments against the DoJ’s position have already been articulated in the sources cited above, so rather than re-create a comprehensive legal response to these arguments, it seems more productive to make a few observations about the new facets of the DoJ’s position:

(1) It is now beyond dispute that the Administration is claiming that George Bush has the right to order any activity or action on the part of the Government -- including against American citizens and even if it transgresses the limitations of the law -- as long as the President simply claims that such actions are necessary to protect America against terrorists. According to the Administration, then, neither the law, nor the courts, nor Congress, nor anything else, can interfere with, limit or even review the President's powers. Thus, says the DoJ:

"Because the President has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al Qaeda, FISA would impermissibly interfere with the President’s most solemn constitutional obligation – to defend the United States against foreign attack."

That’s the Administration’s position in a nutshell. The Constitution not only allows, but requires, the President to defend the country. Therefore, the President is empowered to do anything at all which he "determines . . . [is] necessary to the defense of the United States from a subsequent terrorist attack," and any "interference" -- whether from the law, the Congress, or the courts -- is "impermissible."

In order to defend Bush’s eavesdropping program, the Administration is required to assert this position of presidential omnipotence. It has no choice. That’s because the DoJ’s principal argument as to why the President had the right to eavesdrop outside of FISA is that the Congressional resolution authorizing the use of force in Afghanistan and against al Qaeda (AUMF) implicitly granted the President an exemption to FISA -- even though it did not mention eavesdropping or FISA -- because the AUMF’s "expansive language . . .places the President’s authority at its zenith" (p. 11) and thus "affords the President, at minimum, discretion to employ the traditional incidents of the use of military force" including within the U.S. and against U.S. citizens (p. 10 & 11) (President can use these powers "wherever [terrorists] may be – on United States soil or abroad").

This position plainly amounts to an assertion that there can be no limits whatsoever placed on the President’s power to engage in any activities which he deems necessary to protect the country. Nobody can find a single sentence in these 42 pages which provides any basis whatsoever for recognizing such limitations on George Bush’s power. It is a naked theory of limitless presidential power. Thus:

* The Letter favorably cites an argument made by Attorney General Black during the Civil War that statutes restricting the President’s actions relating to war "could probably be read as simply providing ‘a recommendation’ that the President could decline to follow at his discretion." (p. 32; emphasis added);

* "[T]he 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." (p. 30);

* The President is the "sole organ for the Nation in foreign affairs" (p. 1);

* "The President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected"), quoting a concurring opinion from radical Executive Branch fanatic Judge Laurence Silberman) (p. 10; emphasis added);

* "[I]t is clear that some presidential authorities in this context are beyond Congress’s ability to regulate" (p. 30);

* "Indeed, ‘in virtue of his rank as head of the forces, [the President] has certain powers and duties with which Congress cannot interfere’") (quoting Attorney General Robert H. Jackson) (p. 10);

* "Among the President’s most basic constitutional duties is the duty to protect the Nation from armed attack" and the "Constitution gives him all necessary authority to fulfill that responsibility." (p. 9);

* the President’s war powers "includes all that is necessary and proper for carrying these powers into execution" (p. 7; citation omitted, emphasis added) -- even in conflicts where, as the Administration concedes is the case here, no war has been declared by Congress (p. 26) (acknowledging the "important differences between a formal declaration of war and a resolution such as the AUMF").

Over and over again in this Letter, the DoJ depicts our government as vesting in the President full and unlimited authority to do anything - literally - which he deems necessary to protect the nation against foreign threats. No formal war declaration by Congress is required. The President can exert these powers both inside the U.S. and against U.S. citizens. Congress cannot "interfere" with the President and the courts cannot review what he is doing.

All of this leads directly to the question posed by Al Gore earlier this week:

Can it be true that any president really has such powers under our Constitution? If the answer is "yes" then under the theory by which these acts are committed, are there any acts that can on their face be prohibited? If the President has the inherent authority to eavesdrop, imprison citizens on his own declaration, kidnap and torture, then what can't he do?

The answer from the DoJ in its letter yesterday is "nothing."

(2) The truly radical nature of the Administration’s position is illustrated by the fact that it is forced to argue that FISA itself – to the extent it "impedes" the President’s power to eavesdrop on American citizens – is unconstitutional. For 30 years, FISA has existed as the framework for regulating eavesdropping by the Government. It was enacted by Congress as a response to serious abuses of this power, signed into law by the President, and nobody serious ever argued that it was unconstitutional. Indeed, the working assumption of both the Congress and the Bush Administration in the wake of 9/11 was that FISA would continue to regulate the Administration’s eavesdropping, which is why The Patriot Act amended FISA in the aftermath of 9/11 (p. 27, fn. 13).

But the Administration is engaged in a full-frontal assault on anything which can be used to argue that George Bush’s wartime powers are limited in some way. That means that if FISA is seen as such a limitation, then the Administration asserts that it can ignore and violate FISA because it suddenly believes it to be unconstitutional. Thus, the Letter claims:

* Congress knew when it was enacting FISA that it "was pressing or even exceeding constitutional limits" (p. 19);

* "Whether Congress may interfere with the President’s constitutional authority" to eavesdrop on Americans as part of the war against terrorists "poses a difficult constitutional question" (p. 29);

* "If an interpretation of FISA that allows the President to conduct the NSA activities were not ‘fairly possible,’ FISA would be unconstitutional as applied in the context of this congressionally authorized armed conflict." (p. 35). In other words, unless we all agree that FISA can’t restrict George Bush’s eavesdropping for as long as this "war" exists - which will be, by their own account, essentially forever - then it’s unconstitutional.

Anything which stands in the way of George Bush’s powers -- which "impedes" or "interferes" with those powers -- is now, according to the Department of Justice, unconstitutional.

And it is important to note here that the DoJ is expressly arguing that even if the AUMF did not grant Bush an exemption from FISA, he would have the right to violate FISA anyway because the Congress has no right to "interfere" in anything he does in defense of the country. Thus, while much is made in the DoJ letter of the argument that Congress silently authorized this eavesdropping when it passed the AUMF, the Administration is asserting the power to violate FISA regardless of whether Congress approved of eavesdropping outside of FISA.

(3) This Letter leaves no doubt, as if there were any before, that the DoJ in now in full advocacy mode on behalf of the President. This Letter is the work of the President’s lawyers scrambling to defend him from law-breaking, and does not even remotely pretend to be the work of an objective body investigating this matter. In light of that, isn’t it time to scoff at Alberto Gonzalez’s facially ridiculous claim that no Special Counsel is needed to investigate this matter because he, Gonzalez, has already done so and concluded that everything is perfectly legal?

If there were ever an issue for our ostensibly independent media to take up, and for that matter for the blogosphere to agitate for, it is the appointment of a Pat Fitzgerald-like Special Counsel to investigate whether the President and others in his Administration broke the law (and, since this program is continuing, whether they continue to break the law). No reasonable person can dispute that the DoJ is far, far beyond the point of constituting some independent law-enforcement check on the President.

(4) Once again, the DoJ does not contend that FISA itself authorized this eavesdropping or that the type of eavesdropping it engaged in is not covered by FISA. To the contrary, it specifically acknowledges that FISA is "generally applicable to the interception of communications in the United States" (p. 2), and "it is assumed for purposes of this paper that the activities described by the President constitute ‘electronic surveillance’ as defined by FISA, 50 U.S.C. section 1801(f)" (p. 17, fn 5).

Although the Letter claims that it is operating on this assumption in order to avoid the disclosure of classified information about the eavesdropping program, the DoJ could easily assert that it believes the eavesdropping complied with the mandates of FISA but that it is incapable of describing why this is so without disclosing classified information. But unlike Bush’s most slavish followers, the DoJ has never taken the position that its eavesdropping was permitted within the parameters of FISA. To the contrary, in this Letter, the DoJ refers to "[t]he President’s determination that electronic surveillance of al Qaeda outside the confines of FISA was ‘necessary and appropriate.’" (p. 36, fn. 21).

The need to defend George Bush’s law-breaking has put the DoJ in the position where it can defend him only by expressly advocating a theory of presidential power that really does bring us to the John Yoo vision of a President who – even in times of a permanent and undeclared war, and even against American citizens – can exert unlimited and unchecked powers ("Neither statute . . . can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.")

That's no longer the Yoo theory. It now describes the expressly claimed power of the Bush Administration. It is difficult to overstate how radical and consequential this development is.

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