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.

Wednesday, May 10, 2006

Still searching for excuses for Bush's lawbreaking

(updated below)

A virtual celebration is taking place among Bush-following bloggers because they think there has been a major discovery which proves once and for all that The Commander-in-Chief did nothing wrong when ordering warrantless eavesdropping on Americans even though the law makes it a criminal offense to do exactly that. They believe that magical new discovery shows that George Bush isn't the only to one to violate surveillance laws.

Franklin Roosevelt, they claim, also broke the law when ordering eavesdropping, and for some reason, they seem to think this constitutes a defense to Bush's lawbreaking. Powerline laments: "It is astounding that so little note has been taken of President Roosevelt's actions in connection with current controversies." Matthew Franck at National Review claims that "practically every constitutional argument now ginned up by the Democrats against George W. Bush’s NSA surveillance program was met and turned aside by FDR." All of this hoopla is based on a single article from that magazine so well-regarded for its scholarly articles in history and law, The American Spectator.

Despite the outburst of joyous hysteria among Bush followers -- "hey look - new discoveries show that the Leader isn't the only one to have broken the law!" -- none of this is new. Here, for instance, is an October, 2001 article from Slate's David Greenberg discussing Roosevelt's pre-war surveillance activities in the face of the wiretapping prohibitions in the Communications Act. Greenberg was reviewing the history of wiretapping abuses from the Roosevelt administration through the Nixon administration in order to provide context for the then-pending amendments which were supposed to fix the problems with FISA. For multiple, painfully obvious reasons, these claims about Roosevelt do not remotely provide a "defense" for Bush's violations of the law:

First, all other issues aside, it ought to go without saying -- but apparently it does not -- that to prove that Franklin Roosevelt engaged in wrongdoing or broke the law does not constitute a defense for George Bush's lawbreaking. It isn't news that other Presidents have broken the law. Richard Nixon broke the law, too. Proving that other presidents acted illegally doesn't exonerate George Bush from his deliberate acts of lawbreaking. That's just obvious.

Second, the ambiguities in the eavesdropping prohibitions in the Communications Act during Roosevelt's presidency were manifest. The wiretap ban was generated by concern over the Hoover-led FBI's domestic law enforcement efforts against violations of prohibition laws. As a result, the law specifically made it a crime not merely to intercept communications but to "divulge or publish" the content of those communications. Thus, it was far from clear whether the law prohibited wiretapping for foreign intelligence gathering purposes, as opposed to domestic law enforcement purposes. That was the ambiguity which Roosevelt believed justified his use of eavesdropping in order to monitor foreign espionage activities.

By contrast, FISA has no ambiguity, and not even the Bush administration claims it does. To the contrary, its title -- Foreign Intelligence Surveillance Act -- makes plain that it applies to eavesdropping devoted to the collection of foreign intelligence, and FISA expressly applies both in times of peace and in times of war. In sum, there is no question that FISA prohibits exactly the warrantless eavesdropping in which the Bush administration deliberately engaged, and Attorney General Alberto Gonzales unambiguously admitted this at his December 19, 2005 press briefing with Gen. Michael Hayden:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.

The Bush administration does not claim that there is ambiguity as to whether FISA encompasses the type of warrantless eavesdropping the President ordered. There is no ambiguity. It prohibits such eavesdropping on its face, and the administration admits this. It's true that they peddle legal theories arguing that they have the right to engage in warrantless eavesdropping notwithstanding FISA's criminal prohibitions of that eavesdropping, but they do not deny -- and they never have -- that FISA unambiguously outlaws precisely the type of eavesdropping the president ordered.

Put another way, Roosevelt understood the law to permit the eavesdropping activity he ordered. He therefore believed he wasn't breaking the law but was acting in compliance with it. By fundamental contrast, Bush understood perfectly that FISA prohibited exactly the eavesdropping he ordered -- there can be no doubt that FISA covers exactly this situation -- but he ordered the eavesdropping anyway because he believes he has the power to act even in violation of Congressional statutes. Roosevelt believed that he was complying with the law. Bush knew he wasn't but did it anyway because the theories of lawbreaking he has adopted vest in him the power to break the law. Those acts are not comparable. They are opposites.

Third, and perhaps most importantly, to point out that there have been past instances of eavesdropping abuses in this country -- as though that somehow justifies Bush's violations of FISA -- is backwards logic. As David Greenberg discusses (and as I document at length in my book), the domestic surveillance activities of World War II steadily expanded in scope and abuse -- from Truman's interception of all telegraphs transmitted in the United States to the FBI's sweeping surveillance of political figures such as Martin Luther King, Jr. under Kennedy and Johnson, and culminating with the extraordinary wiretapping abuses of the Nixon administration. Indeed, as Greenberg notes, "Roosevelt specified that his order applied to espionage by foreign agents," and the scope of that order steadily expanded under Truman, Eisenhower, and subsequent presidents, to include U.S. citizens.

All of these surveillance abuses, uncovered and documented by the 1976 report of the Church Commission, shocked and outraged the country. In the aftermath of those revelations, Americans demanded that clear-cut, definitive limits and safeguards be placed on the Government's powers to eavesdrop on American citizens.

The lack of safeguards on the eavesdropping powers exercised by Roosevelt and subsequent presidents is exactly what led the nation to enact FISA -- for the specific purposes of prohibiting those abuses by criminalizing warrantless eavesdropping and allowing eavesdropping only with judicial oversight. Americans in 1978, by consensus (the vote in the Senate approving FISA was 95-1) made it a crime to eavesdrop without warrants because they wanted to put an end to the history of abuse by past administrations, and they thus made the law crystal clear that warrantless eavesdropping would henceforth be a crime. To cite that history of abuse by past Presidents as though it somehow justifies violations of FISA is illogical and perverse beyond what can be described.

This "defense" would be like justifying violations of recently enacted anti-drunk-driving laws by pointing out that people used to drive drunk and got into accidents with great frequency, and therefore there is nothing wrong with people violating anti-drunk-driving laws now. Of course people drove drunk previously. That's precisely why the country enacted stringent laws criminalizing that activity. Going into court and defending some DUI defendant on the ground that many other people drove drunk in the past is not even a coherent argument, and yet that is what this new claim amounts to -- "past presidents illegally eavesdropped and therefore Bush is justified in violating the law that Americans thereafter enacted in order to prohibit such eavesdropping abuses."

In 1978, Americans made it a crime for their government to eavesdrop on them without judicial approval -- and they expressly applied that prohibition both to peacetime and wartime. The fact that an argument can be made that Franklin Roosevelt may have violated a much more ambiguous statute does not even remotely justify George Bush's violations of the crystal clear FISA. George Bush has no right to engage in behavior which the American people through their Congress made it a criminal offense to engage in. Period. That his followers are scraping around for arguments such as "55 years ago, Roosevelt did something similar" is a pretty good indication of how sparse are the available defenses.

UPDATE: One other point is worth making here. Whatever doubts existed as to whether national security demands entitled a President to violate the law were fully and unambiguously resolved by the U.S. Supreme Court in 1952, when it ruled in Youngstown Co. v. Sawyer, 343 U.S. 579 (1952) that President Truman's claimed need to sieze the steel factories in order to support the nation's Korean War effort did not entitle him to act contrary to Congressional intent that he not have seizure power. As Justice Jackson put it in his Concurring Opinion:

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.

Any presidential claim of lawbreaking powers was smashed by Youngstown. And let's just repeat that last excerpted line again: "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."

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