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.
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.
By Andrew Cohen