Did Bush roll past legal stop
signs?
Fort Wayne.com/Washington Post
By Suzanne E. Spaulding
December 30, 2005
WASHINGTON – At his news conference Dec. 19, President Bush objected
when a reporter characterized his use of executive power to eavesdrop on
Americans without any court order as "unchecked." The president's
sensitivity is understandable. As he went on to explain, the charge of
unchecked power implies that he is asserting a kind of dictatorial authority
– precisely what Americans fought, and continue to fight, against in
Iraq.
But what are the sources of checks and balances of a president's
authority? They are the Congress, the courts and, ultimately, the American
people. Based on the facts as reported so far, none of these appear to have
operated as an effective check on this extraordinary exercise of presidential
power.
Ironically, if it is ultimately determined that this domestic surveillance
program reflects the exercise of unchecked power in contravention of law, it
will wind up weakening the presidency. Once again, we will confront the
challenge of restoring Americans' faith in the rule of law and our system of
checks and balances. The administration says Congress was briefed "at least a
dozen times" in the four years since the wiretap program started. Even assuming
that these classified briefings accurately conveyed all relevant facts, it
appears that they were limited to only eight of the 535 senators and
representatives, under a process that effectively eliminates the possibility of
any careful oversight.
Gang of eight briefings
As a former legal counsel for both Republican and Democratic leaders of the
House and Senate intelligence committees, I'm well aware of the limitations of
these "gang of eight" sessions. They are provided only to the leadership of the
House and Senate and of the intelligence committees, with no staff present. The
eight are prohibited from saying anything about the briefing to anyone,
including other intelligence panel members. The leaders for whom I worked never
discussed the content of these briefings with me.
It is virtually impossible for individual members of Congress, particularly
members of the minority party, to take any effective action if they have
concerns about what they have heard in one of these briefings. It is not
realistic to expect them, working alone, to sort through complex legal issues,
conduct the kind of factual investigation required for true oversight and
develop an appropriate legislative response.
These gang of eight briefings, while sometimes necessary, should be
extremely rare. Under the National Security Act, they are supposed to be
limited to situations involving covert actions, and even then only under
"extraordinary circumstances." Yet they have occurred with increasing frequency
in the last few years.
Before I worked on the intelligence committees, I was a lawyer at the CIA.
We understood that congressional oversight was key to maintaining the trust of
the American public, which is vital for a secret agency operating in a
democracy. True oversight helps clarify the authority under which intelligence
professionals operate. And when risky operations are revealed, it is important
to have members of Congress reassure the public that they have been overseeing
the operation. The briefings reportedly provided on the National Security
Agency surveillance program reflect, instead, a "check the box" mentality
– allowing administration officials to claim that they had informed
Congress without having really achieved the objectives of oversight.
Court review
And it is clear that the courts did not have any role in reviewing this
assertion of executive authority. Instead of going to a judge on the secret
court that was specifically established to authorize foreign intelligence
surveillance inside the United States, we are told that an NSA shift supervisor
was able to sign off on the warrantless surveillance of Americans. That's
neither a check nor a balance. The primary duty of the NSA shift supervisor,
who essentially works for the president, is to collect intelligence. The task
of the judge is to ensure that the legal standards set out in the 1978 Foreign
Intelligence Surveillance Act have been met. Which one has stronger
independence to say no, if no needs to be said?
The objectives of the surveillance program, as described in news reports,
seem laudable. The government should be running to ground the contacts listed
in a suspected terrorist's cell phone, for example. What is troubling is that
this domestic spying is being done in apparent contravention of FISA, for
reasons that still are not clear.
Expedited approval
FISA anticipates situations in which speed is essential. It allows the
government to start eavesdropping without a court order and to keep it going
for a maximum of three days. And while the FISA application process is often
burdensome in routine cases, it can also move with remarkable speed when
necessary, with applications written and approved in just a few hours.
Perhaps the administration did not believe that these wiretaps would meet
the FISA standard, which requires the government to have probable cause to
believe that the target of the surveillance is an agent of a foreign power,
which includes terrorists and spies. Yet, since 2001, FISA judges have
reportedly reviewed more than 5,645 applications and rejected only four. The
current judges were all hand-picked by the late Chief Justice William
Rehnquist, who presumably felt that they had the right temperament and
expertise to understand the national security imperatives as well as the need
to protect civil liberties.
Nevertheless, if administration officials believed they faced a scenario in
which the FISA standard could not be met, they could have sought to amend the
statute, as they have done several times since the law's enactment in 1978.
Several such amendments, for example, were contained in the 2001 Patriot
Act.
Changing the law
The administration reportedly did not think it could get an amendment
without exposing details of the program. But this is not the first time the
intelligence community has needed a change in the law to allow it to undertake
sensitive intelligence activities that could not be disclosed. In the past,
Congress and the administration have worked together to find a way to
accomplish what was needed. It was never previously considered an option to
simply decide that finding a legislative solution was too hard and that the
executive branch could just ignore the law rather than fix it.
Moreover, the administration has yet to make the case for keeping this
significant policy change secret for four years. It's hard to imagine that the
terrorists do not already assume that we try to listen to their cell phone
conversations (after all, it is well known that FISA allows such wiretaps) or
that we have technology to help us search through reams of signals. (Check out
the Wikipedia definition of Echelon on the Internet.)
So what do the terrorists learn from a general public discussion about the
legal authority being relied upon to target their conversations? Presumably
very little. What does the American public lose by not having the public
discussion? We lose the opportunity to hold our elected leaders accountable for
what they do on our behalf.
Use of force
Attorney General Alberto Gonzales claims that the NSA program did not
violate the law because FISA only requires a warrant "unless otherwise
authorized by statute or by Congress" and that the congressional resolution
authorizing the use of force after the attacks of Sept. 11, 2001, somehow
authorized this circumvention of FISA's rules. FISA does provide for criminal
penalties if surveillance is conducted under color of law "except as authorized
by statute." This is a reference to either FISA or the criminal wiretap
statute. The Use of Force resolution is not a statute. FISA specifically
provides for warrantless surveillance for up to 15 days after a declaration of
war. Why would Congress include that provision if a mere Use of Force
resolution could render FISA inapplicable?
Presidential authority
The law clearly states that the criminal wiretap statute and FISA are "the
exclusive means by which electronic surveillance... and the interception of
domestic wire, oral, and electronic communications may be conducted." If these
authorities are exclusive, there is no other legal authority that can authorize
warrantless surveillance.
Courts generally will not view such a clear statutory statement as having
been overruled by a later congressional action unless there is an equally clear
indication that Congress intended to do that.
The administration's ultimate argument is that "the president has the
inherent authority under the Constitution, as commander-in-chief, to engage in
this kind of activity." This is the same argument outlined in the infamous
torture memo, which concluded that the president can effectively ignore any
statute that appears to infringe on this broad authority. That memo was
withdrawn after it became public and was roundly criticized. The legal
reasoning behind the arguments, however, has never been repudiated and appears
to have resurfaced here.
We cannot know for certain how the Supreme Court would rule on the
legitimacy of the spying program. However, the court rejected President Harry
Truman's similar claim of broad presidential power in seizing control of the
nation's steel mills to avert a strike during the Korean War. The court, in a
6-to-3 ruling, stated that the president's inherent authority is at its weakest
in areas where Congress has already legislated. It ruled that to find inherent
presidential authority when Congress has explicitly withheld that authority
– as it has in FISA – "is not merely to disregard in a particular
instance the clear will of Congress. It is to disrespect the whole legislative
process and the constitutional division of authority between president and
Congress."
Fear of attack
The administration may be counting on fear of another terrorist attack in
asserting this unprecedented authority. But if President Bush can simply ignore
laws that he thinks are unconstitutional, without getting a ruling from the
court or having genuine consultations with Congress, then why bother to work so
hard at getting the Patriot Act provisions right, or the McCain torture
amendment or any other laws related to terrorism?
And where does it stop? Justice Sandra Day O'Connor rejected the
administration's claim of unchecked power in the 2004 Hamdi case, in which the
government argued that the courts could not review the legality of enemy
combatant detentions. She wrote, "We have long since made clear that a state of
war is not a blank check for the president when it comes to the rights of the
Nation's citizens.... Whatever power the United States Constitution envisions
for the Executive in its exchanges with... enemy organizations in times of
conflict, it most assuredly envisions a role for all three branches when
individual liberties are at stake."
Now that the existence of this program has been revealed, the FISA judges
are finally being briefed and the Senate Judiciary Committee has signaled its
intention to hold hearings. Perhaps these co-equal branches will get some more
specific answers to important questions such as: What legal reasoning was used
to justify the program in 2001? What standard is used in this program? Why
couldn't FISA be used? If FISA was inadequate in some way, why not seek to
amend it? What is the value of the intelligence obtained? Are there other
secret programs that the heads of the intelligence committees have not been
briefed about?
The rule of law and our system of checks and balances are not a source of
weakness or a luxury of peace. As Justice O'Connor reminded us in Hamdi, "It is
during our most challenging and uncertain moments... that we must preserve our
commitment at home to the principles for which we fight abroad."
Suzanne E. Spaulding was general counsel for the Senate and House
Intelligence committees, assistant general counsel at the CIA and executive
director of the National Terrorism Commission (1999-2000). She wrote this for
the Washington Post.
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