Just when you thought this administration couldn't get any more blatant in its effrontery about claiming
and wielding power, along comes the surveillance blitz. I've talked to people who think it's because even the administration
people know their legal case is shaky and want to get ahead of public opinion. What's fascinating and distressing is how quickly
and completely so many people fall into lockstep behind the arguments, perhaps the shakier the better.
What emerges with clarity from the weeks since the National Security Agency domestic surveillance program was made public
is that this administration is single-mindedly devoted to increasing the power of the government, and more specifically of
the executive branch, and has used the 9/11 attack and the subsequent "war on terror" to justify this goal. It is worth remembering
that Dick Cheney, Don Rumsfeld and a few others were veterans of the Nixon administration who saw Watergate not as a loathsome
abuse of power, but as an unfortunate event that discredited and downgraded the prestige and power of the executive branch
and made it more difficult to exercise, in Hamilton's words, "energy in the executive." The terrorist attacks provided a perfect
Truly, as Randolph Bourne explained during World War I (which people in what in retrospect seems a touch of foolish optimism called the Great War),
"war is the health of the state." We had reason to be warned and wary early on when Vice President Cheney explained, I think with a certain detectable gleefulness
in his dour demeanor, that this war might go on for generations. It's almost enough to make one think that the health of the
state – the opportunity to build government power – is the reason and the terrorists a handy justification. I'm
not so paranoid as to think they have purposely avoided capturing Osama bin Laden so as to keep the potential threat always out there. But it was certainly convenient for the U.S. government that bin Laden
showed up on audiotape last week making new threats, giving president Bush an opportunity to invoke him once again in his speech at the NSA.
I would argue, on the other hand, that almost everything the administration has done since 9/11 suggests a fundamentally
unserious approach to bin Laden and al-Qaeda. Intelligence was poor, to be sure, but it was not nonexistent. After 9/11 the
administration didn't use what was available about Afghanistan but went in cold and blundered about, failing to capture either
Mullah Omar or bin Laden. Then it attacked Iraq, which had not been involved in the 9/11 attacks (and didn't have WMDs either),
which stretched U.S. military forces to the breaking point and served as a recruiting ground for terrorists.
All these activities had the effect of building up the state without posing any more than trivial inconveniences –
in some cases bolstering – the terrorists who pose the most concrete threat to the United States. Is it too fanciful
to suggest that building the state rather than destroying or even seriously weakening al-Qaeda was the primary goal?
ASSERTIONS OF POWER
At any rate, administration spokespeople including Vice President Dick Cheney, Attorney General Alberto Gonzales and the president himself have been conducting a full-court offensive to persuade Americans that the program of surveillance of Americans without a
warrant from the special secret court created by the Foreign Intelligence Surveillance Act (FISA) by the National Security
Agency (NSA) was not only legal but virtually obligatory following the terrorist attacks of 9/11. The campaign is no doubt
intended to soften up public opinion in advance of hearings scheduled for Feb. 6 by the Senate Judiciary Committee.
The trouble is, every argument the administration makes rests on shaky legal ground.
The administration argument, in line with the 42-page document released last Friday by the Department of Justice last Friday, has essentially three components. First is that the U.S. Constitution
gives the president, as Commander in Chief, what the advocates have chosen to call inherent "plenary" power to do pretty much
whatever he deems necessary or desirable if it can be said to have been done as part of defending the country from foreign
attack or the threat of foreign attack.
Second, administration people argue that the congressional resolution passed after September 11 for Authorization for Use
of Military Force (AUMF) authorized the president to begin the warrantless NSA domestic monitoring program. As the DOJ document
last week put it, in the AUMF Congress "gave its express approval to the military conflict against al-Qaeda and its allies
and thereby to the president's use of all traditional and accepted incidents of force in this current military conflict –
including warrantless electronic surveillance to intercept enemy communications both at home and abroad."
Third, administration spokespeople argue that the administration consulted with Congress on this program, so what's the
problem? If Congress had objections, it could have and should have raised them. Since it didn't do so when informed of the
program, all this second-guessing now only helps the terrorists
The argument that the president has virtually unlimited inherent "plenary" power to decide what constitutes a threat
and do whatever he deems necessary, perhaps including breaking or ignoring existing laws, to counter it, is a virtually complete
misreading of U.S. constitutional history.
The founders had no love of power (though they thought a certain amount was necessary) and sought in the constitution to
rein it in through several mechanisms – notably by making the states almost coequal with the national government in
power and responsible for most of the day-to-day ways a citizen might come into contact with government (federalism), by creating
three coequal branches of government that would be expected to check assertions or abuses of power by the other branches,
and by enumerating only certain powers (Article 1, Sec. 8) that the national government would have.
That wasn't enough to get the constitution ratified, so they also created a Bill of Rights outlining the rights of citizens
that government was utterly prohibited from violating, and specifying (in Amendments 9 and 10 ) that this wasn't an exhaustive
list, that the people and the states retained all other rights that hadn't been mentioned specifically, thus creating a presumption
of individual liberty that was supposed to govern interpretation.
I'm old enough to remember when conservatives like Russell Kirk railed against the "imperial presidency" and decried placing too much power in the hands of the executive. But since Republicans
who claimed to be conservatives started getting themselves elected to the White House, conservatives have become lovers of
executive power. Apparently empowering putative allies trumps conservative principle and adherence to the constitution every
Of course, we don't bother to have Congress declare war as the constitution specifies anymore but allow the president to
do so unilaterally, perhaps with a namby-pamby congressional resolution as cover, but with the unitary executive fans explaining
that even this isn't really necessary. So you could argue that all the blather about inherent powers during wartime means
nothing until war has formally been declared. But leave that aside for now.
The notion that the president has sole power during wars and conflicts still isn't supported by even a cursory reading
of the constitution. The "plenary" nature of the powers is limited not only by Congress's sole power to declare war, but by the power of Congress (not the president) to suspend habeas corpus
during wartime, to "define and punish ... Offenses against the Law of Nations," "raise and support Armies," "provide and maintain
a Navy," and "make Rules for the Government and Regulation of the land and naval forces." Congress also has the power of the
purse, meaning it could cut off the funds for a war if it chose to do so. Modern Congresses have been pretty shy about exercising
some of these powers, but according to the constitution Congress, not the president, has ultimate power even in time of war,
including the power to "Make Rules for the Government and Regulation" that the president is sworn by oath to obey.
The FISA act was passed in 1978 precisely in pursuit of this kind of constitutional authority and in response to
executive branch abuses. Its purpose was to control the use of surveillance technology by the government in the wake of abuses
documented during Vietnam and Watergate. While the act allows for some emergency exceptions, it specifically says, "the procedures
in this chapter ... shall be the exclusive means by which electronic surveillance may be conducted."
Supreme Court precedent says that when Congress has legislated in a specific area the president's authority to act in a
way other than specified by law, even during wartime – which Congress was never asked to declare – is at its weakest.
And the FISA law says, "A person is guilty of an offense if he intentionally engages in electronic surveillance ... except
as authorized by statute."
One can understand the president authorizing some surveillances without warrant as an emergency situation seemed to warrant
it. But this systematic program has been underway for four years. That's plenty of time to get Congress to adopt new procedures
if they were needed. That would have been the right way to do it. Indeed, the USA PATRIOT Act contained a few minor tweaks
to the FISA system, so getting Congress to act was hardly realistic.
It is difficult to avoid the conclusion that the administration wanted to undertake surveillance that the FISA court –
which has refused only a handful of requests for warrants to do surveillance in the last 20 years – and Congress would
not have authorized if asked to do so openly.
The notion that the authorization for military force resolution also authorized domestic surveillance by the NSA, which
had been confined to overseas surveillance and specifically forbidden to eavesdrop on Americans, is an unconscionable stretch.
No member of Congress thought that at the time it was passed, and nobody in the executive branch suggested that it was going
to be interpreted that way. Congress specifically declined to pass a more far-reaching authorization, and almost certainly
would have rejected the idea of authorizing domestic surveillance by the NSA. The administration almost certainly knew this
and decided to proceed in secrecy, giving only vague and partial explanations to a few selected members of Congress and then
telling them the explanations and the programs were classified and couldn't be discussed in public.
All in all, a breathtaking and shameless power grab.
The Senate Judiciary Committee really ought to explore these and other questions aggressively, without the kind of grandstanding
we saw during the Alito hearings, and in a format that allows plenty of time for follow-up questions and perhaps incorporates
staff counsel as well as senatorial questions. The issue of whether the president deliberately broke the law – even
with pure intentions – is serious enough to warrant extended exploration.
Read also the document published by the U.S. Department of Justice:
The NSA Program to Detect and Prevent Terrorist Attacks - Myth v. Reality