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January 22, 2006 - The Professionals' Views













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One contributor to these pages, our friend the high-powered Wall Street attorney with his office more than thirty floors above the hole where the World Trade Center once stood, studied constitutional law under the late Peter Rodino. Rodino, of course, chaired the committee that voted to impeach Richard Nixon. Rodino knows things, and they became friends. And as much as it would be good to have our Wall Street friend comment on the extraordinary events of this week - the administration presenting a completely unexpected interpretation of the constitution that argues the president need not follow any law he decides limits his actions - that is just not going to happen. Our friend's work precludes that (he's kind of busy), and he plays in two orchestras (see this, his photos of the green room at Carnegie Hall), and his daughter is on pins and needles waiting to see which college will accept her, and there are pressing matters with a few boards he chairs, and there's the pro bono work. Things will only get worse when, soon, his son starts to drive. So we must turn elsewhere to unpack this whole business.

Glenn Greenwald for the past ten years has been a litigator in New York, specializing in First Amendment challenges, civil rights cases, and corporate and security fraud matters. He will have to do. At his law site Unclaimed Territory, Greenwald explains, here, just what seems to be going on. What follows is an attempt to follow him through it all, taking the detailed professional view and putting it in layman's terms.

First of all there's setting the stage.

A month ago (December 22nd) the Department of Justice issued a five-page letter outlining its arguments as to why the President's NSA warrantless eavesdropping program was legally justified. That's here. Then the Congressional Research Service - independent and nonpartisan - on January 5th said that didn't seem to be so. That's here (.pdf format). Then on the 9th there was this (also .pdf format), a letter from fourteen big-gun lawyers and former government people saying this NSA program was clearly illegal - William Sessions who used to run the FBI, and Lawrence Tribe, the man who teaches constitutional law at Harvard, David Cole who does the same at Georgetown, from Duke, Curtis Bradley and Walter Dellinger, from the University of Chicago, Richard Epstein and Geoffrey Stone. That was pretty impressive. And Greenwald points to this, an index of all the arguments on the web that any way you looked at this, the executive order to the NSA to ignore the law and bypass the FISA court was illegal.

The response to all this "push back" saying the president had broken, was breaking, and vowed to continue breaking the law - and to Gore's Martin Luther King Day speech (see January 22, 2006 - Things Have Changed in these pages) - came on Thursday, January 19th with the Department of Justice issuing a forty-two page letter explaining the administration's position. It seemed to be an attempt at clarification.

This long "letter" makes the original claims - the president can break any law he wants as the constitution says he's supposed to protect us, and the congress, even if they didn't realize it, said he could when they authorized him to invade Afghanistan and take "any appropriate action" to deal with any state that supported terrorists and any people or organizations who were terrorists.

But here's the kicker - Greenwald points out that, in addition to adding detail to these first two arguments, now there's a third - if it becomes necessary now the Department of Justice is prepared to argue that the controlling law - the FISA statutes that requires showing probable cause and obtaining a warrant before secretly tapping into the voice and electronic communication of US citizens - is itself unconstitutional. Any law the "impedes" the President's power to do what he feels is "appropriate" is, by its very nature, unconstitutional, as long as as the president says what he is doing is related in any way to the War on Terror. (Of course, he gets to decide just what is the related to the war on terror.)

This is a new one. Congress is acting unconstitutionally when it passes any law that "impedes" the president in his duties, as he defines them. Cool.

This Department of Justice letter is here. (Yes, it's also in .pdf format.)
From Greenwald's observations, there's this, what he considers the core argument - neither the law, nor the courts, nor Congress, nor anything else, can interfere with, limit or even review the President's powers –

 

"Because the President has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al Qaeda, FISA would impermissibly interfere with the President's most solemn constitutional obligation - to defend the United States against foreign attack."

 

Greenwald's take? They're saying the constitution not only allows, but requires, the President to defend the country. Therefore, the President is empowered to do anything at all which he "determines ... [is] necessary to the defense of the United States from a subsequent terrorist attack," and any "interference" - whether from the law, the Congress, or the courts - is "impermissible."

Greenwald –

 

In order to defend Bush's eavesdropping program, the Administration is required to assert this position of presidential omnipotence. It has no choice. That's because the DoJ's principal argument as to why the President had the right to eavesdrop outside of FISA is that the Congressional resolution authorizing the use of force in Afghanistan and against al Qaeda (AUMF) implicitly granted the President an exemption to FISA - even though it did not mention eavesdropping or FISA - because the AUMF's "expansive language ...places the President's authority at its zenith" (p. 11) and thus "affords the President, at minimum, discretion to employ the traditional incidents of the use of military force" including within the U.S. and against U.S. citizens (p. 10 & 11) (President can use these powers "wherever [terrorists] may be - on United States soil or abroad").

 

What would Pete Rodino say?

More snippets from the document –

 

- "[T]he President's role as sole organ for the Nation in foreign affairs has long been recognized as carrying with it preeminent authority in the field of national security and foreign intelligence." (p. 30);

- The President is the "sole organ for the Nation in foreign affairs" (p. 1);

- "The President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected"), quoting a concurring opinion from radical Executive Branch fanatic Judge Laurence Silberman) (p. 10);

- "[I]t is clear that some presidential authorities in this context are beyond Congress's ability to regulate" (p. 30);

- "Indeed, 'in virtue of his rank as head of the forces, [the President] has certain powers and duties with which Congress cannot interfere'") (quoting Attorney General Robert H. Jackson) (p. 10);

- "Among the President's most basic constitutional duties is the duty to protect the Nation from armed attack" and the "Constitution gives him all necessary authority to fulfill that responsibility." (p. 9);

- the President's war powers "includes all that is necessary and proper for carrying these powers into execution" (p. 7)

 

This applies, Greenwald notes, "even in conflicts where, as the Administration concedes is the case here, no war has been declared by Congress (p. 26) (acknowledging the "important differences between a formal declaration of war and a resolution such as the AUMF").

Just call it a war and that will do? Seems so. No formal war declaration by Congress is required.

And as for this idea that congress is acting unconstitutionally when it passes any law that "impedes" the president in his duties, as he defines them, note these –

 

- Congress knew when it was enacting FISA that it "was pressing or even exceeding constitutional limits" (p. 19);

- "Whether Congress may interfere with the President's constitutional authority" to eavesdrop on Americans as part of the war against terrorists "poses a difficult constitutional question" (p. 29);

- "If an interpretation of FISA that allows the President to conduct the NSA activities were not 'fairly possible,' FISA would be unconstitutional as applied in the context of this congressionally authorized armed conflict." (p. 35).

 

So, as Greenwald sees it, "anything which stands in the way of George Bush's powers - which 'impedes' or 'interferes' with those powers - is now, according to the Department of Justice, unconstitutional."

That does seem to be the argument. And the logic is clear - even if the congress actually had specifically said, "Do what you must, George, but don't break the law," it won't matter. They can't say that. They're not allowed to. That's unconstitutional.

Oh, and by the way, note here that Attorney General Alberto Gonzalez says no Special Counsel is needed to investigate any of this because he himself already looked into all this, and, golly, everything that was done and still being done is perfectly legal. Move on, folks. Nothing to see here.

Basically, the letter concedes the law is clear, and that the administration broke it and is breaking it, but the law is really unconstitutional and thus doesn't really matter much, if you think about it their way. The letter refers to "[t]he President's determination that electronic surveillance of al Qaeda outside the confines of FISA was 'necessary and appropriate.'" (p. 36, fn. 21). Trust him. Has he ever misled anyone or gotten anything wrong? And heck, he's determined.

In these pages, back in December, you'd find a discussion of the legal theorist behind all this, John Yoo, now safely back at UC Berkeley. But his theories live on - nothing "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make." This is Yoo writ large.

Greenwald says "it is difficult to overstate how radical and consequential this development is."

Is it? Ric Erickson, editor of MetropoleParis, often tells me that, from afar, it seems to him the government here has taken the position that its citizens are the enemy, until they prove otherwise. There's something to that.

Things certainly are changing. And in this War on Terror, what next is "necessary and appropriate" - canceling the next presidential election?

Ah heck, keep us scared enough and we'll agree to anything.

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Notes and Quotes:

Elsewhere, Greenwald, with no small amount of irony, quotes Bush's very favorite Supreme Court Justice, Antonin Scalia. That's this, Scalia's dissent in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004) –

 

"The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime.

Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U. S. Const., Art. 1, 8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II.

As Hamilton explained, the President's military authority would be "much inferior" to that of the British King: "It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.

 

When Alito gets there he'll take Tony aside and explain how things really work.

And one reader left this at Greenwald's site - "Well, I don't know as I want a lawyer to tell me what I cannot do. I hire him to tell me how to do what I want to do." - J.P. Morgan

Ha!































 
 
 
 

Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
 
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