Bush's illegal spying

The president defied a major Supreme Court ruling to authorize hundreds of wiretaps inside the U.S.

By David Cole
Published December 20, 2005 12:00PM (EST)

With the revelation of domestic spying by the National Security Agency, the message transmitted by the Bush White House is crystal clear: When the president decides existing law is insufficient to protect Americans, he'll move ahead on his own and do whatever he deems necessary in the war on terror.

Bush is defiantly battling critics, insisting that his decision to conduct warrantless wiretaps on hundreds of people inside the United States, including American citizens, was necessary and fully consistent with the Constitution and federal law. Neither claim stands up to scrutiny. The president acted unnecessarily and, more significantly, in direct violation of a criminal law.

The secret spying program was said to be necessary because getting court approval under the Foreign Intelligence Surveillance Act is too time-consuming. That position is difficult to accept: Warrants requested under FISA can be approved in a matter of hours, and the statute allows the government in emergency situations to put a wiretap in place immediately and then seek court approval later, within 72 hours. But the true reason behind the administration's position is less difficult to decode -- the desire to circumvent a key limitation of FISA. Despite the statute's breadth, it permits wiretaps only on agents of foreign powers, and would not have permitted them on persons not directly connected to al-Qaida. Apparently seeking to cast a much wider net after 9/11, the president simply ignored the law and unilaterally -- and secretly -- authorized warrantless wiretaps on Americans.

Was it legal to do so? Attorney General Alberto Gonzales argues that the president's authority rests on two foundations: Congress' authorization of the president to use military force against al-Qaida and the Constitution's vesting of power in the president as commander in chief, which necessarily includes gathering "signals intelligence" on the enemy. But that argument cannot be squared with Supreme Court precedent. In 1952, the Supreme Court considered a remarkably similar argument during the Korean War. Youngstown Sheet & Tube Co. v. Sawyer, widely considered the most important separation-of-powers case ever decided by the court, flatly rejected the president's assertion of unilateral domestic authority during wartime. President Truman had invoked the commander-in-chief clause to justify seizing most of the nation's steel mills. A nationwide strike threatened to undermine the war, Truman contended, because the mills were critical to manufacturing munitions.

The Supreme Court's rationale for rejecting Truman's claims applies with full force to Bush's policy. In what proved to be the most influential opinion in the case, Justice Robert Jackson identified three possible scenarios in which a president's actions may be challenged. Where the president acts with explicit or implicit authorization from Congress, his authority "is at its maximum," and will generally be upheld. Where Congress has been silent, the president acts in a "zone of twilight" in which legality "is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." But where the president acts in defiance of "the expressed or implied will of Congress," Justice Jackson maintained, his power is "at its lowest ebb," and his actions can be sustained only if Congress has no authority to regulate the subject at all.

In the steel seizure case, Congress had considered and rejected giving the president the authority to seize businesses in the face of threatened strikes, thereby placing Truman's action in the third of Justice Jackson's categories. As to the war power, Justice Jackson noted, "the Constitution did not contemplate that the Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries, and its inhabitants."

Like Truman, President Bush acted in the face of contrary congressional authority. In FISA, Congress expressly addressed the subject of warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared. Congress then went further and made it a crime, punishable by up to five years in jail, to conduct a wiretap without statutory authorization.

Attorney General Gonzales contends that the authorization by Congress to use military force somehow implicitly gave the president power to wiretap Americans at home. But nothing in the authorization even mentions wiretaps. And that claim is directly contrary to the express language in FISA limiting any such authority. While intercepting the enemy's communications on the battlefield may well be an incident of the war power, wiretapping hundreds of people inside the United States who are not known to be members of al-Qaida in no way qualifies as an incidental wartime authority.

In light of Congress' explicit rejection of unchecked wiretap authority, Bush, like Truman before him, is clearly in Justice Jackson's third category. To uphold the president here would require finding that Congress has no authority at all to regulate domestic wiretaps of Americans -- a proposition that would require overturning decades of established federal law built on congressional regulation of electronic surveillance.

Had the president's legal advisors consulted Youngstown, the leading Supreme Court case on unilateral executive power in wartime, they would have realized that the appropriate course, if the president felt FISA was insufficient, was not to act secretly and unilaterally in defiance of the law, but to ask Congress to change the law. Bush had a convenient vehicle to do so; the administration delivered legislation within a week and a half of 9/11 that ultimately became the PATRIOT Act, and that granted numerous expansions of FISA authority -- including the infamous "libraries" provision and an expanded ability to conduct foreign intelligence wiretaps in criminal investigations.

Bush has argued that seeking approval for the wiretaps more openly might somehow have tipped off al-Qaida to the possibility it would be subject to surveillance. But many U.S. tactics in the war on terror, in addition to the provisions under FISA, already put terrorists on notice of precisely that possibility. Moreover, Bush's argument proves too much, because it could be applied to every counterterrorism statute. The price of democracy -- and indeed, its strength -- is that the broad outlines of government must be agreed upon in public, not imposed unilaterally behind closed doors.

It is possible, of course, that the president's advisors overlooked the Youngstown precedent, despite its status as the court's most important case on executive power during wartime. In the infamous Justice Department torture memorandum of August 2002, John Yoo -- who also reportedly wrote the memo justifying domestic wiretaps -- made a similar argument that the commander-in-chief authority included the power to order torture, in direct contravention of a statute criminalizing torture and a treaty prohibiting it under all circumstances. That memo did not even cite Youngstown. But ignorance is no excuse. The president acted in clear contravention of a criminal law enacted by Congress and a Supreme Court precedent, both directly on point.

Bush acted, in other words, as if there are no checks and balances in the American system of government. Some things changed drastically after 9/11, but we cannot allow that to be one of them.

David Cole

David Cole is a law professor at Georgetown University, and author, with Jules Lobel, of "Less Safe, Less Free: Why America is Losing the War on Terror" (New Press, September 2007).

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9/11 Fisa Terrorism