The Legal War On Terror

Cohen: W. House Describing Surveillance In Military Terms

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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As it begins in earnest to publicly justify and defend its domestic surveillance program, the White House is couching the controversial initiative in military terms. So "electronic surveillance" now is referred to by Justice Department officials as "signals intelligence activities" and the program itself now is labeled as a "core military" function that acts as an "early-warning system" designed to prevent future terror attacks. Suspected terrorists, meanwhile, are "enemy forces" the warrantless surveillance of whom result from "tactical military decisions" necessary as "a fundamental tool of war."

There is no great surprise in this. The best argument President George W. Bush has to support the National Security Agency's surveillance program is that it is a legal and reasonable exercise of his broad constitutional war powers. These powers, the White House asserts, trump any past Congressional effort to limit warrantless surveillance through the Foreign Surveillance Intelligence Act and any prospective judicial interference in the function. On the eve of Congressional hearings into the legality of the program, the executive branch, you might say, is putting the "war" back into the legal war on terrorism.

Last Thursday, two days after two complaints were filed to stop the NSA program, and on the same day that Osama Bin Laden reintroduced himself onto the world scene with the release of a grainy audiotape threatening more violence in America, the Justice Department distributed a 42-page legal analysis and defense of the government's eavesdropping practice. The first time you read the "White Paper," you feel like it is describing a foreign country guided by an unfamiliar constitution. The second time you read the memo, you have plenty of questions, legal and otherwise, about many of the assertions it contains. The third time you read it, you wonder if the conservative Supreme Court won't, in the end, somehow recognize its breathtakingly broad view of executive power.

As the Justice Department sees it, the president has the constitutional authority as commander in chief to wiretap anyone in the name of national security during a war. This constitutional authority "to protect the Nation from armed attack," the argument goes, was used to justify warrantless domestic surveillance by Presidents Roosevelt and Truman and was recognized by White House officials during the Carter administration, even as the FISA law was being enacted by Congress. "In exercising his constitutional powers," the Justice Department asserts, "the President has wide discretion, consistent with the Constitution, over the methods of gathering intelligence about the Nation's enemies in a time of armed conflict."

In case that argument ultimately proves to be unpersuasive — the Supreme Court has never directly ruled on the issue — the feds fall back to Plan B, which is the argument that the Congress expressly and implicitly authorized and endorsed the NSA program when it passed, on September 14, 2001 — while the World Trade Center was still smoldering — the Authorization for Use of Military Force. How? By using the following words to authorizing the President "to use all necessary and appropriate forceagainst those nations, organizations and persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001." (Emphasis added by the DOJ). This language, executive branch lawyers now argue, represent Congressional intent to permit the president to conduct electronic surveillance without going through the procedures the Congress established under FISA.

This is a daring, almost brazen argument, for it purports to put words into the mouth of Congress, words that the Congress never used on September 14, 2001; words that few legislators are mouthing today. Moreover, the Justice Department contends, the United States Supreme Court endorsed a similarly expansive view of the AUMF when it ruled in the Hamdi case in 2004 that the Congressional authority permitted the indefinite detention of a US citizen despite a specific statute that prohibits it. In other words, the argument goes, since the Supreme Court already has supported the idea that the AUMF meant more than it actually stated when it comes to enemy combatants it ought to be interpreted to mean more than it says when it comes to electronic surveillance that isn't first vetted by the courts.