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.

Thursday, June 01, 2006

Article II and the Underpants Gnomes

By Anonymous Liberal

Last Friday, the Washington Legal Foundation ("WLF) filed an amicus brief in connection with the lawsuit brought by the ACLU challenging the legality of the NSA warrantless surveillance program. If you'll remember, in January the ACLU filed suit on behalf of a number of prominent journalists and academics (including Christopher Hitchens and Larry Diamond, among others). The government is currently seeking dismissal of the suit on both standing and state secrets grounds.

Despite the fact that these threshold jurisdiction issues have yet to be resolved, the WLF decided to submit a brief supporting the government's highly dubious claim that the president has the power under article II of the Constitution to authorize the NSA program, even though it clearly violates FISA.

Over at the Corner, Andrew McCarthy linked to the brief and described it as "an excellent amicus brief in favor of the NSA's terrorist surveillance program." McCarthy is clearly speaking as a partisan here, not as an attorney. I know this because in November 2003, before the NSA program was revealed, McCarthy wrote the following:

There is a respectable separation-of-powers
argument to be made that Congress had no
business giving federal courts a check on the
executive branch's conduct of foreign
counterintelligence, but the after-clap of the Nixon
excesses was no time to make it, and at this point,
after a quarter century, FISA is now settled

McCarthy was right that FISA was well-settled law, at least until President Bush was caught breaking it. But he greatly overstated how respectable this separation-of-powers argument was, even back when FISA was first passed.

The truth is that the argument never made much sense, something the WLF's brief unintentionally illustrates quite well. The argument made in the brief can be summarized as follows:

1) The president has exclusive/plenary power when it comes to foreign affairs and international relations.

2) Surveillance of U.S. citizens within the U.S. for foreign intelligence purposes falls within this exclusive/plenary presidential power over foreign affairs.

3) FISA is therefore unconstitutional and the NSA program legal.

In both logic and structure, this brief reminds me of the three-phase business plan of the Underpants Gnomes on South Park:

1) Collect Underpants

2) ???

3) Profit!

In both cases, there is a magical second step that is totally unexplained. The cases cited in the WLF brief relating to the president's plenary powers over foreign affairs are entirely inapposite. They're referring to the president's power to negotiate treaties and conduct foreign relations, powers clearly given directly to the president by the Constitution. Moreover, the logic of these cases is clear; the U.S. government must speak with one voice to the outside world.

The brief cites exactly zero cases, however, that stand for the proposition that the president alone has the power to set rules for intelligence gathering, particularly intelligence gathering involving the targeting of U.S. citizens on U.S. soil. There's a reason for that. There are no such cases. Setting such rules falls within any number of powers provided to Congress under article I, including the power to make rules governing the armed forces.

More fundamentally, though, this argument ignores the basic structure of the Constitution, a document drafted by men attempting to curtail and constrain exactly the sort of expansive executive power this brief seeks to defend. If FISA impermissibly interferes with the president's "foreign affairs" powers, then so do countless other statutes that no one has ever seriously questioned.

Finally, the suggestion that adherence to FISA would prevent the president from doing his job flies in the face of both logic and history. First, and most obviously, FISA doesn't prevent the executive branch from conducting surveillance of suspected terrorists. It only requires that such surveillance be conducted with minimal (and secret) judicial oversight. In other words, FISA doesn't tell the president how to do his job. It's just a way of making sure that he's only spying on the people he says he's spying on, i.e., the bad guys. That's why Presidents Carter, Reagan, Bush Sr., and Clinton were all able to do their jobs without violating FISA.

I'm willing to listen to arguments as to how FISA can be further improved and fine-tuned, but those are policy arguments to be addressed by Congress. The suggestion that the branch of government that most directly represents the will of the people, Congress, cannot mandate basic procedures for the surveillance of U.S. citizens within the U.S. is just flat-out ridiculous. Even the Underpants Gnomes aren't buying it.

My Ecosystem Details