An Update on President Bush's NSA Program:

The Historical Context, Specter's Recent Bill and Feingold's Censure Motion
By John W. Dean
FindLaw

Friday 24 March 2006

President George Bush continues to openly and defiantly ignore the Foreign Intelligence Surveillance Act (FISA) - the 1978 statute prohibiting electronic inspection of Americans' telephone and email communications with people outside the United States without a court-authorized warrant. (According to US News & World Report, the President may also have authorized warrantless break-ins and other physical surveillance, such as opening regular mail, in violation of the Fourth Amendment.)

Bush's position is that he does not need Congressional approval for his measures. Even he does not claim that Congress gave him express power to undertake them, but he does claim that Congress indirectly approved such measures when it authorized the use of force to go after those involved in the 9/11 terror attacks on the United States. He also argues that, in any event, approval was not necessary - for he argues that he has such authority under Article II of the Constitution, as the chief executive, and Commander in Chief, charged with faithfully executing the laws of the land and protecting the Constitution.

These arguments are hauntingly familiar to this observer.

The Nixon Precedent

No one can question President Bush's goal: Protecting Americans from further terror attacks. But every American should question his means: Openly defying a longstanding statute that prohibits the very actions he insists on undertaking, when done in the very manner he insists upon doing them.

In some two hundred and seventeen years of the American presidency, there has been only one President who provides a precedent for Bush's stunning, in-your-face, conduct: Richard Nixon. Like Bush, Nixon claimed he was acting to protect the nation's security. Like Bush, Nixon broke the law - authorizing, among other things, illegal wiretaps.

Ironically, a stronger case might be made for Nixon's warrantless wiretaps, than for Bush's. Nixon's were installed to track leaks of national security information relating to the war in Vietnam. (He never found the leaker.) He pursued domestic intelligence by illegal means because he believed - based on information from President Lyndon Johnson - that communists had infiltrated the anti-war movement. (No such evidence was ever found.) In addition, he believed that extreme measures were necessary to deal with domestic terrorists, who were responsible for hundreds of deadly bombings. (This is the same argument Bush makes today.)

Nixon also claimed he was only doing what his predecessors had done. That was not untrue - but what had, in the past, been the exception to the rule became standard operating procedure under Nixon.

Bush, however, can only claim one predecessor for his actions: Nixon. And, of course, he has not made this claim - for Nixon was forced from office because of his defiance of the law.

Prior Presidents Have Always Gone to Congress

Bush has admitted he is ignoring FISA. His Attorney General has offered lame and loose legal justifications that he ought not to dare attempt in any court of law. Only blind partisan followers buy the president's bogus legal arguments. The US Supreme Court's prescient discussion of presidential powers reveals how weak these arguments really are.

In May 1952, President Truman directed his Secretary of Commerce, Charles Sawyer, to take charge of the nation's steel mills, rather than permit a strike by steelworkers - and intransigent management - from hampering national security. The nation was at war in Korea, and without steel, the war effort would be in jeopardy. Truman informed Congress of his actions, but rather than asked for emergency legislation, he proceeded by executive order.

The owners of the steel mills immediately sought an injunction, which was granted by a federal district court judge, and the government appealed directly to the US Supreme Court. In a 6-3 ruling, the Court, in Youngstown Co. v. Sawyer, held that Truman's attempted takeover of the steel mills was unconstitutional. Truman then asked Congress for emergency legislation, but Congress turned him down too.

As the strong dissent in Youngstown notes, the "diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to" deny Truman this power. It seems Bush believes he can ride on that dissent. But in the end, the dissent not only is not the law; it is not persuasive.

Truman's actions were not unprecedented: President Lincoln had seized rail and telegraph lines during the Civil War; President Theodore Roosevelt was ready to seize Pennsylvania coal mines if a strike created shortages; President Wilson seized industrial plants and railroads during World War I; and six months before Peal Harbor, President Franklin Roosevelt seized a California aviation plant when a strike occurred. These presidents, however, went to Congress - as Truman also eventually did. Only Bush (like Nixon) refuses to do so.

As Donald McCoy's study of the Truman presidency (for the University Press of Kansas) points out, "Truman had sought not only to resolve the steel crisis but also substantially to expand the president's power in a single action that matched his sense of gravity of the emergency that was confronting the nation. He had gambled badly, and he had lost badly." The same could be said of Nixon, who lost even worse because he - like Bush, and unlike Truman - was acting secretly.

Bush, once it was learned what he was doing, could have asked Congress to grant him the authority that he believed he needed. Instead, he has taken the Nixon approach, and wants to do what he wants to do - the Congress be damned.

Will he succeed? What if he does? What if he doesn't?

Bush's Gambling With Presidential Powers

Like Nixon, Bush has wrapped himself in the American flag, national security, his high office, and a claim to be the defender of America - the man who can show terrorists not to mess with the USA. His critics are attacked as being soft on fighting terrorism, or being knee-jerk partisans, when all they want is for their president to stay within the law.

If the issue stays out of court - and continues to be debated by many as if it were purely a policy issue, and FISA does not exist - Bush may prevail; it will be up to the voters in this Fall's election to judge him, and to decide whether to sweep out of office those legislators who are preventing a full investigation of this matter.

But if this issue goes to court, Bush should worry. Even Republican-appointed judges would have to comprise their judicial integrity to rule in his favor.

One reason it may stay out of court, though, is the difficulty of finding a plaintiff with proper standing: someone who has been illegally harmed by reason of Bush's surveillance. The ACLU has looked for such plaintiffs and then filed a lawsuit but its chances are not strong.

Another reason it might stay out of court is if legislation moots the issue. Senators Dewine, Graham, Hagel and Snowe have sponsored legislation, S. 2455, that would retroactively (as well as prospectively) legalize the president's refusal to seek FISA warrants. The bill provides for nominal oversight by the Senate and House Select Intelligence Committees. And this approach, which has in the past, usually been requested by presidents, rather than simply granted by Congress, has been a satisfactory remedy.

But Bush does not want this retroactive approval by Congress. Instead, he wants to keep on breaking the law to try to set a precedent - enlarging his presidential powers (and those of subsequent presidents) permanently, to the detriment of Congress.

Another possible solution, and probably the most thoughtful and intelligent to be offered, is the legislation proposed by Senator Arlen Specter, Chairman of the Senate Judiciary Committee. Specter - who was once considered by Nixon for a seat on the US Supreme Court, even before he had been elected to the Senate - is now one of the Senate's best legal minds. But I suspect the Bush White House will fight Senator Specter's proposal because under it, they may lose.

Senator Specter's Proposed "National Security Surveillance Act of 2006"

On March 16, Senator Specter introduced his proposed legislation, following hearings in which his Judiciary Committee quizzed Attorney General Alberto Gonzales for seven hours about the legality of the president's action. Neither Gonzales nor anyone on the panel of legal experts that followed, made anything approaching a compelling case that this was legal activity, although several were highly persuasive that it was transparently illegal.

Implicit in Chairman Specter's proposal, S. 2453, is the fact that the president's actions are, indeed, not legal. Although Specter does not so state, his bill would appropriately place the question of the legality of Bush's actions before the FISA Court, where that court could judge it. No doubt he knows how, in fact, they would judge the matter: They would likely find that the President's bypassing their statutorily-granted authority was, and continues to be, illegal.

Specter recognizes the seriousness of the dilemma here: We are a nation at war, yet also a nation that believes in the rule of law. To have it both ways, he has drawn from a recommendation made decades ago by former Attorney General Edward Levi - a staunch defender of the executive powers: Turn the matter over the FISA Court, where it can, if the Administration presents a solid case (of need balanced against the invasion of civil liberties), rule in the President's favor, but can also reject the President's actions if the balance cuts the other way.

Specter's is a great solution. It preserves secrecy: The FISA Court has shown itself capable of keeping secrets, and while the bill requires bi-annual reports to Congress, they would not reveal secrets. Most importantly, whereas the President claims he is protecting liberties by reviewing the program every forty-five days, Specter's bill imposes a similar requirement.

No doubt the Bush Administration will fight Specter's bill - for the simple reason that it does not want to be tested by a court, for it wants neither checks nor balances, but simple the unilateral exercise of executive power. And even if Specter can get the bill through the Senate, Bush's soldiers in the monocratic House will kill it.

Feingold's Motion for Censure

While Specter's bill may be the best idea yet as to how to deal with Bush's behavior, the approach that has received the most media attention is Senator Russ Feingold's resolution calling for censure of President Bush. The resolution condemns Bush's actions in authorizing the illegal wiretapping program of Americans as part of his war on terror, and then misleading the country about the existence and legality of the program.

Even though nearly half of Americans favor censure, it too is a long shot. Yet is probably the most damning of the documents before Congress.

Feingold's preamble points out that Bush openly lied to Americans about his secret wiretapping, on repeated occasions: On April 20, 2004, Bush said, "When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."; on July 14, 2004, he claimed that "the government can't move on wiretaps or roving wiretaps without getting a court order"; and on June 9, 2005, he said, "Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, a federal judge's permission to track his calls, or a federal judge's permission to search his property. Officers must meet strict standards to use any of these tools."

All this was untrue. Bush had authorized these very law enforcement officials to bypass federal judges, and proceed without warrants. Why he engaged in such bald-faced lies, in circumstances where it was not necessary, is unclear.

Senator Feingold's proposal has no chance of being adopted in a GOP-controlled Senate - one that includes, as well, more than a few spineless Democrats. Still, he has made his point. As Feingold told the New York Observer, "What [the Republicans had] succeeded in doing, [since this issue has arisen] was to sweep the illegality under the rug." Feingold added, "I decided it was time to include that on the record and came up with the censure proposal, to bring accountability back into the discussion. And I succeeded in doing that. That's been achieved."

Election 2006 Is the Key

In the end, this issue is going to be resolved by the 2006 midterm election. If Republicans lose control of either the House or Senate, the investigations of the Bush/Cheney White House will begin. It won't be pretty. It will make dealing with lying about sex look like High School hazing. It will even make Richard Nixon look like a piker when it comes to staying within the law.

If the early polls are half correct, independent swing voters have had it with Bush. Democrats want no part of him. Moderate Republicans are keeping their distance; they are no longer willing to hold their noses and vote for him.

The big question is whether there will be an "October Surprise" - a dramatic event that will bump up Bush's currently dismal polling numbers, and help his party. Right now, Republican friends tell me they are doing all they can to keep the mid-terms from being a referendum on Bush. They know they have a better chance if they focus on local races - absent an October Surprise. If you have any knowledge of how White Houses operate, you can be sure they are working night and day to pull off such a surprise.

If they do it, Bush will get away with his lawlessness. If not, he and Cheney are in for two very bad years. They have earned them.

John W. Dean, a FindLaw columnist, is a former counsel to the president.