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, May 19, 2006

Gen. Hayden admits the Administration knew it was violating FISA

In his confirmation hearing yesterday, Gen. Hayden yesterday all but acknowledged that when President Bush ordered the NSA to engage in warrantless eavesdropping on Americans, the administration did not, at that time, rely upon any purported claim that Congress had authorized the President to engage in warrantless eavesdropping via its authorization to use military force against Al Qaeda. That legal theory justifying violations of FISA only came much later. The sole justification the administration had when the President ordered warrantless eavesdropping was its claim that the president has "inherent authority" to violate the law.

Thus, when President Bush ordered warrantless eavesdropping, the administration did not believe that this eavesdropping was authorized by Congress as a result of the AUMF, nor did it believe that the eavesdropping was consistent with FISA. To the contrary, it knew that the eavesdropping it had ordered was criminally prohibited by FISA, and the sole legal justification it relied upon was its belief that the President had the power to order eavesdropping in violation of that law:

At the same time, however, he acknowledged under questioning from Democrats that he did not read the Justice Department's formal opinion laying out the legal rationale for the program. He also said he did not recall any substantive discussion about the Congressional authorization in September 2001 to use all necessary force against Al Qaeda — a resolution that the White House now says helped give it legal authority for the wiretapping operation. "Our discussion anchored itself on Article II," he said.

What this "Article II" claim really amounts to, of course, is a simple claim that the President had the right to order warrantless eavesdropping on Americans even though FISA makes it a criminal offense to do so. That is because, under this "Article II" theory, not just FISA, but any law, which purports to limit what the President can do with regard to anything relating to national security is, by definition, unconstitutional, because nothing and nobody can limit what the President can do in that area, even as it applies to measures taken against U.S. citizens on U.S. soil.

The administration's Article II theory is not specific to surveillance, since nothing in Article II mentions or refers to surveillance. It is nothing more than a re-statement of the defining theory of the Yoo Memorandum -- that the President has sole responsibility for defense of the nation and therefore nothing, including the law, can interfere with anything he chooses to do. He is omnipotent in that area.

That this vision of the all-powerful Presidency is squarely at odds with virtually every founding principle of our country is something that has been discussed many times here, and is a major subject of my book. But one aspect of the administration's decision to violate FISA that has received relatively little attention is just how extraordinary is the sudden claim that FISA, after governing eavesdropping in this country for 27 years, is unconstitutional.

It's not uncommon for a law to be passed and signed into law under a cloud of questionable constitutionality. Since McCain-Feingold was enacted, for instance, scores of people have claimed that McCain-Feingold entails unconstitutional abridgements of First Amendment liberties and litigation began almost immediately after it was signed into law. Indeed, on the very day the Senate approved it, many Senators expressed their view that the law was unconstitutional. That happens commonly with laws which are believed to be unconstitutional -- substantial public debate exists among politicians, law professors, lawyers, and others regarding the law's questionable constitutionality.

But nothing like that ever happened with FISA. It was enacted in 1978 by a vote of 95-1 in the Senate. It was amended six times since then, including under the Bush presidency. President Bush asked for amendments liberalizing its provisions, and never once suggested it was unconstitutional. Four different presidential administrations prior to this one -- two Republican and two Democratic -- complied with its provisions while engaging in surveillance for foreign intelligence purposes, including during the height of our Cold War with the Soviet Union, and during all sorts of military actions, including the Persian Gulf War and military deployments in Latin America, Yugoslavia, and throughout the Middle East.

Until George Bush, no President had ever claimed that the requirements of FISA were unconstitutional. None ever claimed that their Article II powers were infringed because they had to obtain judicial warrants before eavesdropping on Americans, and none ever claimed that their ability to engage in intelligence gathering was impeded in any way by the warrant requirements of that law. There was never any debate in any prominent academic circles or among political pundits over the constitutionality of FISA. The Reagan Administration was filled with ideologues and advocates of strong executive power and yet, as it went to the FISA court every time it wanted to eavesdrop on Americans, it never once claimed that FISA was unconstitutional in any way. Nobody of any prominence did, because its constitutionality was never in doubt.

This notion that FISA is unconstitutional never emerged until the Bush administration wanted to eavesdrop on Americans with no oversight. And it was not publicly articulated until George Bush got caught violating that law and needed a defense. Criminal defendants frequently claim that the law they are accused of violating is unconstitutional. That is a common tactic among people who get caught breaking the law.

That the AUMF defense did not even exist when the President ordered warrantless eavesdropping on Americans is extremely significant because it means that the administration did not even purport to beleive that the eavesdropping they were ordering was consistent with any statute. They knew that FISA criminalized that eavesdropping, and the sole justification for engaging in it was that President Bush could order the law violated because he has that power, and FISA is invalid to the extent it regulates that power. But the circumstances under which this claim arose, by itself, demonstrate how frivolous this theory is.

FISA was passed overwhelmingly and has governed eavesdropping in our country for almost 30 years, with no suggestion that it is unconstitutional and with president after president complying with its mandates and never challenging them. That long-standing consensus does not dispositively prove that the law is constitutional, but the fact that nobody claimed that FISA was unconstitutional until it was revealed that President Bush has been violating that law, is rather compelling evidence of just how weak and pretextual that claim is.

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