The Legal War On Terror

Cohen: W. House Describing Surveillance In Military Terms

(CBS) 
And, if this argument doesn't hold water, the feds have a Plan C, which is the argument that the Congressional authorization after 9-11 trumps the FISA law, which requires the government to either seek a court order in advance for surveillance of this type or to ask for it soon after the surveillance begins. Plan D posits that if the FISA law is interpreted to limit the president's power to conduct this sort of surveillance it is unconstitutional. And all the while the White House wants you to remember that this isn't the sort of surveillance you've grown familiar with from law enforcement officials — it's "a fundamental incident of the use of military force." In this world view, eavesdropping on a conversation between an American journalist in New York and an anti-American leader in Iraq is tantamount to listening to the Germans talk among themselves behind the Siegfried Line.

That's the first read of the White Paper, wherein the president comes off as a warrior king. The second read of the memo simply raises questions. If the NSA program is as legally sound as the White House now claims it is why didn't the president level with high-ranking Congressional officials who otherwise are privy to all sorts of sensitive national security matters? If the Congress truly intended in its September 2001 authorization to give the president the go-ahead to circumvent FISA then why isn't it now making explicit the consent the White House claims was implicit in the AUMF?

Since when is it a constitutional exercise of separation of powers for the executive branch, the prosecutor, to "ensure that civil liberties are being protected," as the Justice Department claims? If the White House had a problem with FISA procedures, as it now says it does to justify its circumvention of those procedures, then why didn't it simply ask the Congress to fix those problems? There is no way the legislators would have said no. And when does the state of emergency end? Since this "armed conflict", unlike every other "war" the United States has endured, has no theoretical end, when will conditions permit a return to the days when the government did not spy on its own people under the guise of "foreign intelligence" gathering?

There's more. "Signals intelligence" between two members of the enemy is quite different from "signals intelligence" between an innocent journalist, lawyer or author and an incarcerated terror suspect or political leader in Iraq or Iran or anywhere else. Surely the former are not "enemy forces" by any measure. So how does this factual distinction play into the legal analysis governing the president's authority to eavesdrop? The Justice Department contends that "the NSA activities are reasonable because the Government's interest, defending the Nation from another foreign attack in time of armed conflict, outweighs the individual privacy interests at stake…" but this argument proves too much. It could be used to justify any intrusion upon privacy since the defense of the Nation always will be more important than any one person's rights.

And, finally, there's the third read. Unlike many of my fellow legal commentators, I do not see all this as a slam dunk loss for the White House. Its AUMF argument is silly, to be sure, and surely FISA means something even today, but the President does have constitutional authority to engage in extraordinary measures during times like this, and it will be up to the Supreme Court ultimately to decide how far those measures can go. By the time these issues reach the High Court, Justice Sandra Day O'Connor, whose "war is not a blank check" sound byte has been rendered obsolete by the White House's position, will be gone, replaced by Judge Samuel A. Alito, Jr., whose view of presidential power is as sweeping as is that of the man who nominated him to the Court.

Perhaps there will be a political resolution to all of this. But if there is not, I'm not convinced that the legal result is going to offer much solace or comfort or satisfaction to the millions and millions of Americans who cringe at the idea that the executive branch has taken upon itself the function of eavesdropping on its citizens, without a court order, and then assuring us that it'll be all right because procedures are in place to ensure civil liberties are protected. Those assurances rang hollow in 1776 and 1787, which is why the Founders incorporated checks and balances and the separation of powers into our instruments of government. And they ring hollow today, even in a time of terror, when in order to protect our rights and liberties the executive branch has by these and other means limited them.