The Bush administration apparently feels that research from the non-partisan Congressional Research Service (CRS) has undercut its legal standing on warrantless searches. It’s a fair conclusion: lawmakers take the CRS seriously — the service is basically Congress’ official lawyers — and the agency has completely exposed the administration’s legal arguments as a sham. Twice.
Yesterday, in the hopes of convincing lawmakers that the CRS is wrong — or, at a minimum, keeping Republican concerns at bay — the administration released a white paper insisting that there’s nothing illegal about the NSA program.
The Bush administration argued yesterday that the president has inherent war powers under the Constitution to order warrantless eavesdropping on the international calls and e-mails of U.S. citizens and others in this country, offering the administration’s most detailed legal defense to date of its surveillance program.
Unfortunately, over the course of 42 pages (.pdf), there’s not much in the way of new arguments. Bush has the “inherent” authority to execute a war on terror, Congress’ 9/11 resolution said the president could do anything he wanted in this endeavor, yada yada yada.
What I did find interesting, however, is to help find support for its case, the administration relied on the Federalist Papers. Yes, the ones from 1788. From the administration’s report:
To carry out these responsibilities, the President must have authority to gather information necessary for the execution of his office. The Founders, after all, intended the federal Government to be clothed with all authority necessary to protect the Nation. See, e.g., The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (explaining that the federal Government will be “cloathed with all the powers requisite to the complete execution of its trust”); id. No. 41, at 269 (James Madison) (“Security against foreign danger is one of the primitive objects of civil society . . . . The powers requisite for attaining it must be effectually confided to the federal councils.”). Because of the structural advantages of the Executive Branch, the Founders also intended that the President would have the primary responsibility and necessary authority as Commander in Chief and Chief Executive to protect the Nation and to conduct the Nation’s foreign affairs. See, e.g., The Federalist No. 70, at 471-72 (Alexander Hamilton); see also Johnson v. Eisentrager, 339 U.S. 763, 788 (1950) (“this [constitutional] grant of war power includes all that is necessary and proper for carrying these powers into execution”) (citation omitted).
I don’t think they were kidding.
The Federalist Papers were describing a chief executive’s role as the head of the military, not an executive who had unlimited power to circumvent the law in pursuit of that goal.
Indeed, as Norm Ornstein, a conservative scholar at the American Enterprise Institute, recently said about this controversy, “I think if we’re going to be intellectually honest here, this really is the kind of thing that Alexander Hamilton was referring to when impeachment was discussed.” That would be the same Hamilton that wrote some of the Federalist Papers Bush’s lawyers cited yesterday.
At this point, the legal arguments are failing badly. No one’s is buying the notion that the president can circumvent the law when he decides it’s necessary.
But James Bamford, an expert on U.S. intelligence and the author of two books considered primers on the NSA, said the Justice Department’s arguments are refuted by Congress’s clear intent in 1978 to block warrantless surveillance and by its lack of intent to suggest such surveillance in October 2001.
“You could review the entire legislative history in the authorization to use military force and I guarantee you won’t find one word about electronic surveillance,” Bamford said. “If you review the legislative history of FISA, you will find Attorney General Griffin Bell testifying before the intelligence committee saying this was specifically passed to prevent a president from claiming inherent presidential powers to do this again.”
This, too, was illustrative.
Robert Reinstein, dean of the law school at Temple University, said in an interview that he considered the eavesdropping program “a pretty straightforward case where the president is acting illegally,” and he said there appeared to be a broad consensus among legal scholars and national security experts that the administration’s legal arguments were weak.
The administration really should stop trying to justify their actions by relying on the law. It’s getting embarrassing.