Helpful Supplements

Looking back on my posts from yesterday, it occurs to me that I sort of jumped into the dialogue midstream. I thought that maybe today I would go over the basics. I realize that I'm going at this somewhat backwards, but since the blog already reads top-down, it could conceivably make sense.

My comments yesterday referred to the President's warrantless wiretapping program. The latest information has Bush authorizing the program sometime after 9/11 and probably before the passing of the USA Patriot Act on October 26, 2001. The wiretapping program, now known as the "Terrorist Surveillance Program" (TSP), supposedly conducts warrantless surveillance of international calls either originating or ending in the U.S. if at least one of the parties is affiliated with Al-Qaeda. Bush and his followers have repeatedly insisted that such surveillance is limited to those specific circumstances. He plausibly says that "if somebody from al Qaeda is calling you, we'd like to know why." And I am sympathetic to such a statement. I live in NYC after all. But we already have a framework for dealing with this sort of intelligence gathering - and it's not a carte blanche for Mr. Bush.

Congress recognized that there were national security concerns implicated in going through the public and slower process of obtaining warrants through the court system. That's why they passed the Foreign Intelligence Surveillance Act (FISA) in the first place. FISA allowed the administration to obtain warrants from a secret Foreign Intelligence Surveillance Court (FISC) while also lowering the necessary threshold from probable cause to believe that a criminal activity is taking place to probable cause that the target is an agent of a foreign power. Notably, the passage of the Patriot Act amended the FISA statute further, making it even easier to obtain a warrant. Originally under FISA, the purpose of the FISA investigation had to have as a "primary purpose" the collection of foreign intelligence. Under the Patriot Act amendments, collection of foreign intelligence must merely be a "significant" purpose of the investigation. "Significant" is left vague and undefined.

So, FISA was designed an an apparatus to allow the administration to conduct the necessary intelligence gathering activites incident to wartime, while still respecting the constitutional requirements of the Fourth Amendment. And yet the Terrorist Surveillance Program completely ignores FISA. As I mentioned above, it purports to only wiretap international calls where at least one party has ties to Al-Qaeda. It, the President says, is necessary in the war on terror. FISA, he says, is too limiting, or inapplicable to the Executive, or worse yet, unconstitutional.

You see, the administration claims that it has inherent powers under Article II of the Constitution. Professor Dorf gives a wonderful and uncomplicated analysis of these legal claims. I will give the pared-down version. Basically, the Constitution under Article II gives the President a set of inherent powers, such as the power to pardon, or to make treaties or act as Commander in Chief. As Dorf explains, some of these powers are default powers and some are exclusive. An exlusive power is a power granted to the President that Congress cannot legislate away. For instance, Congress cannot pass a law depriving the President of his right to make pardons. A default power is a power granted to the President but also granted in some degree to the Congress. An example is powers concerning war, for the Congress is empowered under Article I [14] "[t]o make Rules for the Government and Regulation of the land and naval Forces." Contrary to an exclusive power, a default power may be regulated by Congressional law. As Dorf explains, surveillance is a default power and Congress has sought to regulate it under its FISA framework.

As I explained in an earlier post, under a Supreme Court ruling in 1952, the famous concurrence by Justice Robert Jackson held that when Congress has passed a law which the President directly violates, if it is a "default power" then the President's power "is at its lowest ebb." I suggest reading Dorf's article for a clearer understanding.

Also, for an expert's view on the illegality of the NSA program, you can read this letter to Congress signed by a number of constitutional scholars.