The Constitution Versus Itself

Attorney Andrew Cohen analyzes legal issues for CBS News and

We are now on the verge of one of those grand and grave constitutional dramas that scholars and historians will study decades, maybe centuries, from now. By boldly proclaiming that his constitutional war powers trump the Fourth Amendment's search and seizure clause, federal law, and any other countervailing authority, President Bush has placed before the American people their starkest legal choice yet between freedom and security.

The president says without apology that he has, and has used, the legal power to order the National Security Agency to conduct electronic eavesdropping on people, including U.S. citizens, within the United States without prior court approval. He said Saturday during a live radio address that his orders to the NSA to eavesdrop domestically were "a vital tool in our war against the terrorists," "critical to saving American lives" and "consistent with U.S. law and the Constitution." The government has long had the power, through proper procedures, to conduct foreign surveillance in this fashion. What makes last week's revelations markedly different is that this power now has been used domestically, in some cases against U.S. citizens, without formal Congressional or judicial approval.

The president's legal position — that no law may forbid him from ordering domestic surveillance without a warrant — is not explicitly contained in the text of the Constitution, has never before been implied into it by the federal courts, and is nowhere to be found in Congress' most germane legislation on the topic. You might say, as one long ago Supreme Court justice might have put it, that the president's power to wage war in this fashion, without specific constitutional or statutory authority, stems from the discovery by government lawyers of "penumbral emanations" of such power in the Constitution itself. That doesn't mean the power does not somehow exist; it just means that no other branch of government, including the branch that has the job of interpreting the Constitution, has ever stated that it does.

The White House, in other words, is planting its flag in startling new legal turf and daring the other two branches to do something about it. And it looks like we won't have to wait long before they do. Already, there are calls in both houses of Congress for hearings to determine whether the president broke the law when he bypassed the procedures contained in the Foreign Surveillance Intelligence Act, which were put into place a generation ago in order to protect Americans from overzealous government surveillance. And it may only be a matter of days before someone files suit in federal court somewhere to try to halt the president's declared intent to continue the domestic spying program.

The fight over domestic surveillance brings to a head the simmering conflict between the branches over the extent of the executive branch's power to wage its "back-story" war against terrorism. No one seriously disputes the president's power to commit troops to combat or to otherwise order military operations designed to break the back of the terror network. But as last week's Senate showdown over the Patriot Act suggests, and as last week's smackdown of the president over the torture issue proves, more and more serious people in government are challenging the White House's power to wage war through other means, through measures like the practice of "extraordinary rendition," the use of "enemy combatant" status, and heretofore unauthorized domestic spying. The days of mindless, fickle deference to the president appear to be over.

The legal issues surrounding this new fight are more complicated than a single column can unwind. But just listing some of the issues raised by the government's practice ought to give you a sense of what the courts, and Congress, soon may have to wrestle with. First, there is a dispute over just how much inherent war power the president has under the Constitution. Does this power extend to domestic surveillance, especially when the Congress, through FISA, has legislated in the area? Over three decades ago, a more liberal Supreme Court ruled that President Nixon did not have the power to order domestic wiretapping in the name of "national security." Any case that arises out of the current dispute will have to work its way through that precedent.

Next there is the question of which constitutional principle prevails when there is a conflict. The president has constitutional authority to wage war under Article II of the Constitution. This authority, long acknowledged by the Supreme Court, is fairly vast. But the Bill of Right's Fourth Amendment precludes government "searches and seizures" without a finding of probable cause. If these principles are in conflict, which they clearly are in the case of domestic eavesdropping without prior warrants for the purpose of national security, then which one has precedent over the other?

Of course, the Fourth Amendment has been whittled down a bit over the years due to modern exigencies but its "probable clause" requirement — that a neutral arbiter has to okay the search (the eavesdropping) before it can be conducted — still means something. It meant enough, for example, for Congress to create a whole new secret, swift-moving court under FISA to deal with the need for quick judicial rulings on probable cause in national security cases. FISA, you might even say, represents a pre-existing compromise for the problem of which side loses when the president takes on the Fourth Amendment. Would a legal victory for the president in this future case mean the effective end of the "probable cause" requirement? Probably not. Would it gravely limit it? Absolutely.

Then there is the statutory dynamic. The president says that he has the constitutional authority that supersedes any Congressional legislation (federal law) about surveillance. This argument posits that FISA says only as much as it says — about foreign intelligence gathering — but does not in any way preclude a president from ordering domestic surveillance activity. The flip side of that argument is that Congress, by specifically not permitting domestic eavesdropping in FISA, meant for it to be off-limits to the very people who were being given a chance under FISA to eavesdrop on sources overseas.

Another pertinent question on the statutory side is whether Congress superseded (read: scaled back or even effectively repealed) its surveillance restrictions in FISA when it gave the president its "Congressional Authorization To Use Military Force" while the fires were still burning at the Pentagon in Sept. 2001. There is nothing in that Congressional authorization, however, that specifically mentions FISA or the executive branch's ability to spy on its own citizens here in the United States. And I would suspect that if you asked the 535 members of Congress then serving, the vast majority would tell you that giving the president the power to eavesdrop without a warrant on domestic communications was the furthest thing from their mind when Afghanistan and bin Laden were in the bull's-eye. Still, it's an argument some court somewhere is going to have to wrestle with along with all the others.

So what happens now? What if Congress passes a law that amends FISA to say that the president may conduct warrantless domestic eavesdropping? Such an act still would not resolve the constitutional question of whether the president's constitutional war powers trump the constitutional right to be free from warrentless search and seizure. And, incidentally, the same goes if the Congress amends FISA to specifically preclude warrantless domestic surveillance. Congress is ready to hold hearings but, in the end, the federal courts alone will determine the outcome of this fight between competing constitutional interests. It's like Chicken Little in reverse. Having said so little for so long about the White House's post-9/11 penchant for unilaterally declaring and exercising power and authority, the Congress now has nothing trenchant to say about a topic — surveillance — which, FISA teaches us, can be a legislative matter.

The irony, of course, is that the disclosure of domestic eavesdropping, constitutional or not, comes just as the White House's credibility with the other two branches has ebbed. This will make it less likely that the courts, including, ultimately, the Supreme Court, will take the executive branch at its word when it says that it itself has implemented procedures designed to ensure that domestic eavesdropping is done in the spirit, if not to the letter, of the Constitution. Such assurances over the past few days haven't seemed to convince anyone of anything. Indeed, the failure Friday of Congress to renew the USA Patriot Act's most controversial provisions is just the most visible victim of the sense of intra-branch distrust these days.

Having picked fight after fight with its sister branches over anti-terror powers — having stretched its legal arguments over constitutional war powers almost beyond the point of recognition — has the White House finally have gone too far? It's the question the federal courts will have to wrestle with as the latest legal drama begins to unfold in Washington.

By Andrew Cohen