Testimony in a Teacup

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By Douglas W. Kmiec
Friday, May 18, 2007

James Comey's Senate testimony on Tuesday was staggeringly histrionic. It has, as Sen. Arlen Specter suggested, the dramatic flair of the Saturday Night Massacre. Presidential emissaries seeking the signature of a critically ill man only to be headed off at the hospital room door by a Jimmy Stewart-like hero defending the law over the pursuit of power. Frank Capra, call your office.

There are several problems with this scene. First, the comparison to Watergate is wholly inapt. Watergate involved a real crime -- breaking and entering, with a phenomenally stupid coverup that also fit the definition of criminal obstruction. And the underlying motivation for Richard Nixon's demise was raw politics. Comey's tale lacks crime and this venal political intrigue.

Officially, Comey -- an obviously admirable fellow -- did his best not to disclose that his testimony related to an interpretive disagreement over the highly classified but nevertheless well-known terrorist surveillance program. Sparring between the Office of Legal Counsel (OLC) and the White House, and apparently even within the OLC, over the legal basis for this program in wartime is leagues different from burglary for purposes of political dirty tricks.

That war thing also jettisons any serious motivational comparisons between the two. An honest, if intense, disagreement over how best the president can fulfill his constitutional and statutory functions to prevent another Sept. 11-style attack, which, as it happened, was repeating itself within the territory of our ally Spain at the moment of the hospital intrigue, says more than enough to make the point of difference.

Even if OLC attorneys had been unanimous that the president lacked the legal authority to conduct the kind of military intelligence-gathering that every other wartime president has pursued, that would hardly warrant the conclusion that the president had "broken the law." To his credit, Comey resisted this characterization four times when pressed by Specter. Comey conceded that he had no idea whether the certification of the continuation of the surveillance program he was being asked to make had a basis in statute or regulation. In fact, it has neither. It was a "form and legality" determination that the president had self-imposed to internally discipline an exercise of power that necessarily must delicately balance national security and civil liberties.

The Office of Legal Counsel is not the Supreme Court. It is an important and respected internal executive office that advises the president and attorney general and resolves disputes within executive branch agencies. Executive agencies can't sue each other over contested points of law, since they all work for the president. To bring a case in federal court, a litigant needs to be concretely adverse to his opponent. One agency may prevail over another, but if it does, it is not by judicial decree but presidential judgment, to which both are answerable.

Therein lies the real shortcoming of the Comey narrative. The OLC gets the first, and often definitive, crack at legal interpretation, provided it is not overridden by the president, who delegated this very power in the first place. Like all such delegations, however, it is both revocable and necessarily bounded in scope by the Constitution and any relevant congressional enactment. Enter the Foreign Intelligence Surveillance Act (FISA), which, subject to exceptions, declares that it is the "exclusive" source of domestic spying authority.

Comey's testimonial flourish is actually yet another rehashing of whether the president's responsibility as commander in chief (under Article II) and the broad grant of all "necessary and appropriate" power given in military authorization by Congress trumps the ill-fitting FISA statute, which was drafted in peacetime and whose leisurely espionage structure arguably contemplates exceptions to its warrant regime premised on "other statutes."

The FISA-presidential power spat invites reasonable legal minds to disagree, as Comey and Attorney General Alberto Gonzales do. Comey, who conceded that he was no "presidential scholar," decided as acting attorney general to defer to the OLC, which prides itself on being such. Then-White House counsel Gonzales took the side of the president. Gonzales was obviously wrong to think that the signature of a man who recused his office because of illness would have any legal purchase, and why he would pursue it from an official under sedation -- if that is what was intended by his trip to the hospital -- is mystifying. However, Comey was equally mistaken to think that withholding his signature had to be the final act -- when that is necessarily the president's call.

Bush administration officials are often portrayed as seeking a revival of diminished executive authority. At this point, it simply would be useful if they understood it and did not engage in futile and ethically dubious maneuvers or contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment.

The writer, a professor of constitutional law at Pepperdine University, was assistant attorney general and head of the Office of Legal Counsel to Presidents Ronald Reagan and George H.W. Bush.


© 2007 The Washington Post Company

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