Guest Post by Anonymous Liberal
At an event sponsored by the Federalist Society on Thursday, Vice President Cheney said the following to a room full of lawyers and law students:
We’re confident because the Terrorist Surveillance Program rests on firm legal ground. The Joint Authorization to Use Military Force, passed by Congress after 9/11, provides more than enough latitude for these activities. Therefore the warrant requirements of the FISA law do not apply to this wartime measure. And the program falls squarely within the constitutional powers of the President. Every appellate court to rule on this issue has recognized inherent presidential authority to conduct warrantless surveillance to counter threats directed at the country from abroad.
It’s hard to understate just how wrong Cheney is as a matter of law and how deeply delusional he should sound to anyone with even a cursory knowledge of the legal issues involved here. But then again, this is the Federalist Society, so naturally his speech was interrupted repeatedly by applause.
Though I wrote most of this post last night, I see this morning that Glenn Greenwald has picked Cheney’s speech apart line by line. As is so often the case, particularly with respect to this issue, Glenn’s post is right on the money and well worth reading in its entirety.
Rather than be repetitive, let me just add that if Cheney truly is confident that the “Terrorist Surveillance Program” rests on “firm legal ground,” then he is utterly detached from reality and entirely insulated from the people actually running things in the West Wing. After all, there’s a reason the White House has been trying so hard, post Hamdan, to secure legislation legalizing the TSP. There’s a reason why, after Hamdan, they were suddenly interested in working with Arlen Specter where they hadn’t been before. It’s because they know that, absent legislation, the program is sure to be struck down. Indeed it already has been by one court (a decision Cheney is “confident” will be overturned).
Let’s do a quick review of the relevant law. Cheney claims that the AUMF “provides more than enough latitude for these activities” and “[t]herefore the warrant requirements of the FISA law do not apply to this wartime measure.” That is just such rubbish. No serious person bought this argument even before Hamdan, but post-Hamdan, it is entirely frivolous.
The Court observed in Hamdan that “there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in . . . the UCMJ.” All you have to do is substitute “FISA” for “UCMJ” and you know exactly what the Court would say about Cheney’s argument. You’ll never see a Supreme Court precedent more precisely on point.
Moreover, everyone who has even a cursory understanding of these issues knows how utterly frivolous this claim is. That includes people like Andrew McCarthy of the National Review, who, from the beginning, has been one of the chief apologists for the Bush administration on these issues. McCarthy wrote a column in July entitled “Dead Man Walking: Hamdan sounds the death knell for the NSA’s Terrorist Surveillance Program.”
As for Cheney’s claim that “[e]very appellate court to rule on this issue has recognized inherent presidential authority to conduct warrantless surveillance to counter threats directed at the country from abroad,” again this is total and complete rubbish. The cases he’s referring to are all pre-FISA cases. They stand merely for the unremarkable proposition that, absent any statute to the contrary, the President can conduct warrantless surveillance related to issues of national security.
But these cases most certainly do not stand for the proposition that the president can act in direct violation of a duly enacted statute. Again, as the Court made clear in Hamdan:
Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.
Again, just substitute the phrase “conduct warrantless surveillance” for “convene military tribunals” and it’s perfectly clear what the Court thinks about Cheney’s position. Let me repeat: everyone knows this. I know that Cheney (and Addington and Yoo) have a deep desire for the law to be something other than what it actually is, but I don’t see what is to be gained by simply asserting, and with unmistakable condescension, that up is down. This sort of arrogant disregard for the actual state of the law can’t really be helpful to Cheney’s case. It’s only going to anger those in the Senate whom the White House is hoping will pass some version of the “Terrorist Surveillance Bill” passed by the House prior to the election.
And perhaps even more importantly, I can only see this kind of hubris hurting the government in the case currently pending before Judge Lynch in the Southern District of New York. Judge Lynch held a hearing in that case in September (transcript available here), and in it, he gave more than a few hints that he found these arguments to be frivolous. For instance, at one point, the DOJ attorney said the following:
By the way, the AUMF argument, which we advanced, which we’re quite confident of, nevertheless is an attempt to avoid this constitutional issue, as the court is advised to do.
To which Judge Lynch responded, diplomatically: “Well I think I’ll just in summary say I’m not that impressed by that one.”
In other words, it took Judge Lynch about one second to brush aside Cheney’s AUMF claim, and understandably so. It’s a terrible argument. And that exchange was followed by this one, which is even better:
Judge Lynch: Is there any case that you’re aware of where the Supreme Court or any court has held that an act of Congress that purports to regulate some foreign affairs matter is unconstitutional because it infringes the inherent war powers or commander in chief powers of the president?
DOJ Attorney: It’s not jumping to mind, your Honor. I don’t want to say there’s one that isn’t out there.
Judge Lynch: You haven’t cited me one that I know of?
DOJ Attorney: I don’t believe we have.
Judge Lynch: There are cases, of course, like the appointments powers cases where acts of Congress have been found unconstitutional for infringing on presidential power. But there aren’t many, are there? I mean, this is pretty uncharted ground that you’re asking me to get on, or you’re asking me to stay off it. But basically, in saying that FISA can be unconstitutional for this reason, if we got to the merits of this, you would be asking this Court and ultimately more authoritative courts than this one to rule that on the basis of implicit understandings, conundrums and emanations and unspecific things in the Constitution, that an act of Congress signed by the President of the United States into law enacted after full debate by the political branches is nevertheless unconstitutional.
Judge Lynch was my criminal law professor at Columbia, so I recognize his tone, even from the transcript. It’s borderline sarcastic. He clearly doesn’t buy the government’s arguments on the merits. And it can’t help when someone like Cheney gives condescending speeches repeating these bogus arguments as if they were somehow obviously correct. Cheney is more or less daring district court judges, like Lynch, to strike this program down.
I hope they do.