The President's End Run
THE MOST detailed legal justification to date for the National Security Agency's warrantless domestic surveillance has emerged from the Bush administration, but the 42-page version isn't any more convincing than its shorter predecessors. In some ways -- particularly in its broad conception of presidential power in wartime -- it is more disturbing.
As it had implied previously but never flatly stated, the administration asserted that the Foreign Intelligence Surveillance Act (FISA) would be unconstitutional if it were read to prevent the president from engaging in the kind of warrantless surveillance that the administration has been conducting.
This interpretation, with its expansive view of the commander in chief's powers, would call into question Congress's ability to prevent the administration from engaging in torture or cruel and inhuman treatment or to establish rules for detainees and military tribunals -- exactly the areas in which we have been encouraging Congress to step up to the plate.
The administration, appropriately, would prefer to avoid the constitutional argument. Instead, it contends first that FISA's warrant requirements were superseded by the post-Sept. 11 congressional Authorization for the Use of Military Force (AUMF), which allows the president to "use all necessary and appropriate force" to prevent "any future acts of international terrorism against the United States."
The administration cites this sweeping language and the Supreme Court's ruling in Hamdi v. Rumsfeld , in which a plurality found that the AUMF allowed the president to detain U.S. citizens captured on the battlefield as enemy combatants. The administration says that reasoning applies equally to "all traditional and accepted incidents of force . . . including warrantless electronic surveillance to intercept enemy communications both at home and abroad."
A critical difference between detention and surveillance, however, is that Congress has already passed a law outlining detailed requirements for domestic surveillance -- even during wartime; FISA specifically provides a 15-day grace period for warrantless surveillance in time of war. The vague wording of the AUMF can't reasonably be read to implicitly trump FISA.
The administration goes on to say that if the AUMF doesn't provide such approval, and if FISA is interpreted to prohibit such wiretapping outside its procedures (the law says it is to be the "exclusive means" for authorizing foreign intelligence surveillance), the statute would be unconstitutional.
President Bush, the paper says, "determined that the speed and agility required to carry out the NSA activities successfully could not have been achieved under FISA." Because those activities "are necessary to the defense of the United States from a subsequent terrorist attack, FISA would impermissibly interfere with the President's most solemn constitutional obligation -- to defend the United States against foreign attack."
Before and since the 1978 passage of FISA, presidents have asserted that they also possess the inherent constitutional authority to authorize warrantless searches. Yet there is a major difference between claiming such inherent presidential power and stretching it -- too far in our view -- to conclude that, when Congress has spoken on an issue, the president is free to ignore that legislative action.
Especially without knowing the parameters of the surveillance, we hesitate to second-guess the president's argument that FISA's limits are unduly constraining. The surveillance may be critical for national security, and a law written in a different technological age may well need to be refurbished. But the proper way to handle that -- which the administration rejected -- would have been to seek changes in the law, not to do a stealthy end run around the legislative process. In such an amorphous, long-running conflict as the war against terrorism, it's critical to ensure that limits are in place to prevent the executive branch from overreaching.