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.

Monday, July 24, 2006

Specter instructs us to be grateful to the President

Sen. Arlen Specter has an Op-Ed in this morning's Washington Post which attempts to justify his proposed FISA legislation -- legislation which, at its core, renders legal the President's lawbreaking and cedes to the President the right to eavesdrop on Americans with no judicial oversight. The bill would also all but kill pending litigation challenging the legality of the President's eavesdropping conduct, and endorse a theory of presidential power so extreme that even the President's own Attorney General rejects it. Despite all of this, Specter claims, apparently with a straight face, that "negotiations with administration officials and the president himself were fierce" and that the bill is "a preeminently fair compromise."

What Specter's Op-Ed actually does is provide a powerful reflection of the extent to which the Congress has been reduced to an empty, symbolic vessel which is permitted to act only to the extent it retroactively endorses the President's conduct. The outright debasement of the Congress by the administration is additionally reflected by the fact that Specter is actually expressing gratitude for the President's willingness to allow courts to adjudicate the constitutionality of his conduct, as though that is something the President has the power to prohibit. Here is Specter explaining what he considers to be the grand concession he won from the White House:

President Bush's record of seeking to expand Article II power has been a hallmark of his administration. The president and vice president have vociferously argued that the administration had the authority for the program without any judicial review. Bush's personal commitment to submit his program to FISC is therefore a major breakthrough.

This is as incoherent as it is alarming. With the Specter legislation, Bush has not agreed to allow the FISA court, or any other court, to adjudicate the legality of his eavesdropping program (meaning whether he has been violating the law for the last five years by ordering warrantless eavesdropping). To the contrary, the Specter bill would all but kill pending litigations around the country which allege that the President acted criminally by violating FISA. Nor would the Specter bill require the President to submit eavesdropping requests to courts for approval. To the contrary, the bill expressly allows the President to eavesdrop on Americans with no judicial oversight.

The sole question which a court will decide under this claimed oral agreement between Specter and the President is whether warrantless eavesdropping violates the Fourth Amendment. Thus, what Specter is celebrating here is that the President courteously agreed to "allow" a federal court to decide whether the eavesdropping he has ordered on Americans violates the Constitution's prohibition on searches and seizures in the absence of probable cause warrants. Since when does a President have the option to prohibit judicial determinations as to whether his conduct violates the Constitutional rights of American citizens? In what conceivable way can it be said to be a "concession" that George Bush has deigned to permit a federal court to rule on the constitutionality of the eavesdropping he ordered?

The Bush administration, as is well known by now, believes that the President has the power to violate laws enacted by Congress. But not even George Bush, Dick Cheney or John Yoo have argued that he can override specific constitutional protections guaranteed by the Bill of Rights. All Bush has "agreed to" is to conditionally "allow" a court to decide if his eavesdropping violates the 4th Amendment. Expressing gratitude for that or acting as though it is some sort of concession is to now vest the President not merely with the power to violate Congressional law, but also the Bill of Rights.

Worse still, Specter endorses a theory of radical presidential power which (a) has been rejected for 50 years in this country (since Youngstown); (b) the Supreme Court just again emphatically rejected in Hamdan; and (c) even Alberto Gonzales acknowledges is simply wrong. Specifically, Specter argues as follows:

Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say. . . . If the president's assertion of inherent executive authority meets the Fourth Amendment's "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.

Specter here echoes the central myth which the President's most disingenuous followers have been disseminating ever since the NSA scandal began -- that because the President has the "inherent authority" under the Constitution to eavesdrop, Congress cannot restrict, regulate or limit that power in any way. That is just plainly wrong. The whole point of our system of Government is that the three branches share power in all areas. That is what "checks and balances" means. Congress has every right to regulate even those powers which the President possesses. That is beyond dispute at this point.

The Supreme Court in Hamdan just ruled not more than three weeks ago that even though the President has the Constitutional power to create military tribunals for war detainees (just as he has the Constitutional power to eavesdrop), he is required to do so in accordance with the laws enacted by Congress. That was the whole point of Hamdan -- that the President is required to abide by the law even with regard to the exercise of his Constitutional powers. And just to make certain that this point was not lost on the Arlen Specters of the world, the Court (f. 23; emphasis added) explained :

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring).

Justice Kennedy, in his Concurring Opinion, emphasized that this has been the law since at least Youngstown, which he quotes to make that point (emphasis added): "If the President has exceeded these [Congressional] limits, this becomes a case of conflict between Presidential and congressional action . . . And '[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.'"

Most amazingly, when Alberto Gonzales testified before Specter's own Judiciary Committee, had told Specter that it is false to claim -- as Specter just did -- that Congress lacks the power to regulate or restrict "inherent Constitutional powers" of the President:

GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war. And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.

The whole premise of Specter's defense of the President and his bill is just indisputably false. It has been unambiguously rejected by Youngstown, Hamdan, and even Alberto Gonzales. Both Marty Lederman and Anonymous Liberal add their astonishment that Specter could articulate such a plainly false legal argument. And it is not some obscure legal error, but a principle that lays at the core of how our system of government works. The President does not have the power to operate outside of the laws of our country, and that's particularly true when it comes to actions he takes against American citizens on U.S. soil.

This is what we have been reduced to. A Senator actually celebrates as some sort of victory or "concession" the fact that the President will allow the constitutionality of his actions to be decided by a court. And we are told that although the President has been breaking the law for the last five years, that is all perfectly "understandable" and we should just all be grateful that the President is allowing us to pass a law which makes that conduct legal.

My Ecosystem Details