just earlier this morning, we learned that
vice president dick cheney was personally
involved in retribution against patrick philbin
(from a sworn statement of james comey
[PDF], former u.s. attorney), for openly
opposing what he, and john ashcroft, and
james comey, and robert mueller, and a
host of others, believed was an unlawful
wire-tapping program — it thus also
allegedly violated the guarantees of our
fourth amendment — to be secure in our
papers, and persons, and free from un-
reasonable searches and seizures. . .
let’s hear what a leading legal expert
had to say this very afternoon, at the house
judiciary committee hearing on the limits,
under our constitution, of such eavesdropping
programs [emphasis supplied — by ed.]:
Statement by Louis Fisher
Specialist in Constitutional Law
House Committee on the Judiciary
on Domestic Surveillance
June 7, 2007
Mr. Chairman, thank you for inviting me to testify on the constitutional limitations that apply to domestic surveillance. The committee provides an important public service in exploring the issues raised by the “Terrorist Surveillance Program” (TSP), authorized by the administration after 9/11 and conducted by the National Security Agency (NSA). . .
. . .NSA’s surveillance program raises elementary questions about the constitutional duty of Congress to make law. In the Steel Seizure Case of 1952, Justice Robert Jackson eloquently summarized our constitutional principles:
“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.”
Simple words but so profound. The Executive is under the law, not above it. The law is made by Congress.
The TSP represents a direct challenge to our system and form of government. Under the guise of “inherent” power, the executive branch claims the right to ignore statutory law in order to give preference to executive-made law, all done in secret. Other countries have adopted this approach, at great cost to democratic institutions and individual rights.
Independent Executive Law?
On December 17, 2005, after the New York Times published the story about the NSA eavesdropping program, President Bush in a radio address acknowledged that he had authorized the agency to conduct the surveillance, “consistent with U.S. law and the Constitution.” In subsequent statements, as President Bush continued to refer to “U.S. law” or “authority,” it appeared that he meant law created solely within the executive branch, even if contrary to a law passed by Congress. He underscored his independent Article II constitutional powers: “The authorization I gave the National Security Agency after Sept. 11 helped address that problem [of combating terrorism] in a way that is fully consistent with my constitutional responsibilities and authorities.” He said he had “reauthorized this program more than 30 times since the Sept. 11 attacks.” Similarly, on December 19 Attorney General Alberto Gonzales stated that “the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity.”
Michael V. Hayden appeared before the Senate Intelligence Committee on May 18, 2006, to testify on his nomination to be CIA Director. Previously he had served as NSA Director at the time the TSP was initiated. At the hearing, he defended the legality of the program on constitutional, not statutory, grounds. In recalling his service at NSA after 9/11, he told the committee that when he talked to NSA lawyers “they were very comfortable with the Article II arguments and the president’s inherent authorities.” When they came to him and discussed the lawfulness of the program, “our discussion anchored itself on Article II.” The attorneys “came back with a real comfort level that this was within the president’s authority [under Article II].”
This legal advice was not put in writing and Hayden “did not ask for it.” Instead, “they talked to me about Article II.” What could the talk have been about? The President as Commander in Chief? What other words in Article II would have clarified the legal analysis and produced a comfort level? Apparently the NSA General Counsel was not asked to prepare a legal memo defending the TSP. No paper trail. No accountability. Just informal talks. We all know that hallway discussions about legal and constitutional issues are not likely to look as persuasive or as sound when put on paper and submitted to peers for their independent assessment.
During the hearing, Hayden repeatedly claimed that the NSA program was legal and that in taking charge of the CIA the agency “will obey the laws of the United States and will respond to our treaty obligations.” Given what he said throughout the hearing, what did he mean by “law”? A policy drawn solely from within the executive branch, depending on someone’s interpretation of Article II? That appears to be what he meant. After 9/11, while at NSA, he said he “had two lawful programs in front of me, one authorized by the president [the TSP], the other one would have been conducted under FISA as currently crafted and implemented.” In other words, he had two choices: one authorized by the President, the second authorized by Congress. He selected the former. He told one Senator: “I did not believe – still don’t believe – that I was acting unlawfully. I was acting under a lawful authorization.” He meant a presidential directive issued under Article II, even if in violation of the exclusive policy set forth in FISA.
Hearing him insist that he was acting legally in implementing the NSA program, a Senator said: “I assume that the basis for that was the Article II powers, the inherent powers of the president to protect the country in time of danger and war.” Hayden replied: “Yes, sir, commander in chief powers.” Hayden seemed to clearly imply that he was willing to overstep statutory law in order to carry out presidential law. After 9/11, CIA Director George Tenet asked whether NSA could “do more” to combat terrorism with surveillance. Hayden answered: “not within current law.” In short, it appears that the administration knowingly and consciously decided to act against statutory policy. It knew that the NSA eavesdropping program it decided to conduct was illegal under FISA but decided to go ahead, banking on Article II powers.
At one point in the hearings, Hayden referred to the legal and political embarrassments of NSA during the Nixon administration, when it conducted warrantless eavesdropping against domestic groups. In discussing what should be done after 9/11, he told one group: “Look, I’ve got a workforce out there that remembers the mid-1970s.” He asked the Senate committee to forgive him for using “a poor sports metaphor,” but he advised the group in this manner: “since about 1975, this agency’s had a permanent one-ball, two-strike count against it, and we don’t take many close pitches.” TSP was a close pitch. If Congress learns more about the program, we may learn if NSA hit or missed.
Continued Reliance on Article II
In January 2007, after several setbacks in the federal district courts on the TSP, the administration announced it would no longer skirt the FISA Court but would instead seek approval from it, as required by statute. Exactly what “orders” the FISA Court issued is unclear, because they have not yet been released to Congress. The announcement seemed to promise compliance with FISA, but there is insufficient information to know what the new policy is or how permanent it is.
Was the administration now relying solely on statutory authority or had it kept in reserve its Article II, inherent power arguments? Had the administration merely offered a temporary accommodation while keeping the door open to Article II claims? At oral argument on January 31, 2007 before the Sixth Circuit, regarding one of the TSP cases, one of the judges asked the government: “You could opt out at any time, couldn’t you?” The Deputy Solicitor General acknowledged the possibility.
At a May 1, 2007 hearing before the Senate Intelligence Committee, the administration seemed to promote Article II. Michael McConnell, the Director of National Intelligence, signaled that the administration might not be able to keep its pledge to seek approval from the FISA Court. When asked by Senator Russ Feingold whether the administration would no longer sidestep the FISA Court, McConnell replied: “Sir, the president’s authority under Article II is in the Constitution. So if the president chose to exercise Article II authority, that would be the president’s choice.” McConnell wanted to highlight that “Article II is Article II, so in a different circumstance, I can’t speak for the president what he might decide.”
We’re back to basics: Who makes law in the national government? If Congress passes a law through the procedures specified in Article I, is the President obliged under Article II to “take Care that the Laws be faithfully executed”? Alternatively, is the President at liberty to craft – in secret – an executive-made law that supplants and overrides statutory law? These hearings will help Congress and the public take part in an all important debate on what constitutes “the rule of law” in America. It has been our foreign policy to support and encourage the rule of law abroad. Shall we also have it here at home?. . .
Louis Fisher is a specialist in constitutional law with the Law Library of the Library of Congress, after working for the Congressional Research Service from 1970 to March 6, 2006. During his service with CRS he was research director of the House Iran-Contra Committee in 1987, writing major sections of the final report. Fisher received his doctorate in political science from the New School for Social Research and has taught at a number of universities and law schools.
His books include President and Congress (1972), Presidential Spending Power (1975), The Constitution Between Friends (1978), The Politics of Shared Power (4th ed. 1998), Constitutional Conflicts Between Congress and the President (4th ed. 1997), Constitutional Dialogues (1988), American Constitutional Law (with David Gray Adler, 7th ed. 2007), Presidential War Power (2d ed. 2004), Political Dynamics of Constitutional Law (with Neal Devins, 4th ed. 2006), Congressional Abdication on War and Spending (2000), Religious Liberty in America (2002), Nazi Saboteurs on Trial (2003; 2d ed. 2005), The Politics of Executive Privilege (2004), The Democratic Constitution (with Neal Devins, 2004), Military Tribunals and Presidential Power (2005), and In the Name of National Security: Unchecked Presidential Power and the Reynolds Case (2006). With Leonard W. Levy, he edited the four-volume Encyclopedia of the American Presidency (1994), which received the Dartmouth Medal from the American Library Association. He has twice won the Louis Brownlow Book Award (for Presidential Spending Power and Constitutional Dialogues) and in 2006 he received the Neustadt Book Award for Military Tribunals and Presidential Power.
Dr. Fisher has been invited to testify before Congress on such issues as war powers, CIA whistleblowing, covert spending, executive privilege, executive spending discretion, presidential reorganization authority, Congress and the Constitution, the legislative veto, the item veto, the pocket veto, recess appointments, the budget process, the Gramm-Rudman-Hollings Act, the balanced budget amendment, biennial budgeting, presidential impoundment powers, and executive lobbying.
He has been active with CEELI (Central and East European Law Initiative) of the American Bar Association, the International Bar Association, and the Library of Congress in helping other countries draft new constitutions. He is the author of more than 350 articles in law reviews, political science journals, encyclopedias, books, magazines, and newspapers. Fisher filed four amicus briefs in military tribunal cases (Padilla and Hamdan) and an amicus brief in a case brought by the Center for Constitutional Rights regarding NSA eavesdropping. He has been invited to speak in Albania, Australia, Belgium, Bulgaria, Canada, China, the Czech Republic, England, France, Germany, Greece, Israel, Japan, Macedonia, Malaysia, Mexico, the Netherlands, Oman, the Philippines, Poland, Romania, Russia, Slovenia, South Korea, Taiwan, Ukraine, and the United Arab Emirates.
[ed. note: the full-text (in PDF) of
his remarks is also available.]
this is why paying attention to every
executive branch assertion of power really
does matter — there is no sound basis,
in law, or fact, for a “unitary” executive.
it is simply a fancy window-dressing, used
to distract the people of america — all the
while, allowing the rise of the goose-steppers. . .
but that’s just my $0.02.