07/18/2008 05:12 am ET | Updated May 25, 2011

The Unitary Executive Congress

On Wednesday July 9, the Senate voted to pass the FISA Amendments Act. This was
a new law the Democratic majority in Congress had opposed in principle for the
last five months in defiance of President Bush. They had suffered no political
harm for taking the stand. Indeed, they defied him with as much success here as
in opposing the privatization of social security. The collapse of the Democratic
leadership on FISA was thus a sheer political calculation; yet the panic of the
reversal ran ahead of any visible threat. It betrayed an embarrassment at the
leadership's complicity with the president -- but in a manner that only increases
the embarrassment and only tightens the complicity.

The collapse also reflected a weakness of collective character. The fourth
amendment sets up a law no executive may stand above: a law that forbids the
trawling by the government for information against citizens without probable
cause. It says every warrant must be supported by an oath or affirmation which
particularly describes the place to be searched, and the things to be seized.
Under pressure (but a very general not a particular pressure), the Democrats
showed that, for them, the fourth amendment is dispensable in a way in which
social security is not dispensable.

The new law has these important effects: (1) It reaffirms the president's right
to order individual taps as well as massive data mining, on foreign targets and
on American citizens with foreign contacts whom the president finds suspicious.
(2) It extends from three days to a week the period during which he can spy on a
person or many people, abroad or in this country, without telling anyone. (3) It
contracts the authority of the FISA court from approval of individual warrants
to approval of the general procedures used in surveillance. (4) It replaces the
FISA court, as the single approver of individual warrants, with the inspectors
general at the government agencies and departments; most of all (it would seem)
the inspector general of the NSA. (5) It narrows the investigation around the
telecom immunity lawsuits from a sifting for possible violations of the law by
the president in seeking warrantless wiretaps -- and by the telecoms in supplying
those wiretaps -- to the bare question whether the president had attached a note
from a legal authority in requesting help with his searches and seizures. Not
"Was it illegal and did the president and telecoms know it was illegal?", but
rather, "Did he get a lawyer to sign for it?" has become the question for a
court to decide. (6) Not the FISA court but a district court will answer that
question for all the lawsuits covering the years 2001-2005.

The public controversy has centered on the campaign by libertarian groups
against immunity for the telecoms. But the catastrophe of this legislation
resides in title I: the content of items (3) and (4). The power of approval,
inspection, and denial of warrants has, under the terms of the new law, swung
over almost entirely from the FISA court to the various inspectors general.

There are good and less good inspectors general. But taken as a body, and
compared to a special intelligence court, they make a precarious, accidental,
and arbitrary means of oversight, a nugatory check (devised for its impotence)
on operations as massive as those we have seen this president commandeer. Last
year the inspector general at the department of justice, Glenn Fine, brought to
light some failures of FBI compliance with the law on National Security Letters:
an appropriate service to the public good by an inspector general which nobody
else could have performed. It may also be remembered that Stuart Bowen, the IG
for Iraqi Reconstruction, has spoken of some abuses of the easily manipulated
system of contracting in Iraq; but here we come to another pitfall. For Bowen,
when appointed, was an old personal associate of George W. Bush, an adviser in
Texas who became counsel to the Bush transition in 2000. Would an Iraq IG less
closely tied to the president have made different and larger discoveries about
American reconstruction? Again, an IG may come under illicit pressure within
his own department, as John Helgerson at the CIA recently found. In October
2007, in an astonishing arrogation of power, Michael Hayden, the director
of the CIA, launched an investigation of Helgerson. Would the effect of such
discipline not be to intimidate all but the boldest inspectors? Consider,
finally, the current inspector general at the Pentagon, Gordon Heddell. He
splits his time there with the other job he holds as inspector general of the
department of labor. What double after-hours will Heddell be working at the
Pentagon, to ferret out the truth in recent charges of fraudulent contracts and
corruption? Or was he chosen and then permitted the double position with
precisely the hope that he would not work too hard at the Pentagon?

The slide in oversight from a court with many judges to the determinations of
inspectors generals is no small part of the new FISA law. It is the central
structure of an enfeebled system of checks. This was not what the American
founders had in mind when they passed the fourth amendment after having framed
article I of the Constitution.

It cannot be repeated too often that there was no deficiency in the existing
FISA procedure. Over 30 years, the FISA court had authorized more than 19,000
wiretaps, and had refused only five. The use of FISA warrants was as a formal
check more than an active restraint; but it was a check the president risked
many honorable careers to overthrow. Why? What drove the president's men with
such persistent and hidden resolve? Only one motive that can possibly explain
the actions. They were interested in a kind and a scope of mining and trawling
which they knew would be greeted with alarm by the FISA court. They thought it
would be certainly disapproved and perhaps brought to light. Why were they so
sure they would not pass the test 19,000 earlier warrants had passed? Because
particular descriptions and probable cause were missing, in even the broadest
understanding of those terms. That is what the lawsuits would have discovered.

All this Barack Obama knew well. He vowed many times that he would filibuster
against the FISA Amendments Act. He had FISA in mind when he said in the most
stirring words of his campaign: "I have taught the Constitution, I understand
the Constitution, and I will obey the Constitution when I am President of the
United States." But on Wednesday, given the opportunity to filibuster, he voted
to close off filibuster. Given the chance to compel another president to obey the
Constitution, he joined his party and gave the president a retroactive excuse.
All together, they asked George W. Bush please not to break the law again.

Here are those who voted to resist the enlargement of powers and the institution
of legal immunity for the president:

Akaka (D-HI)

Biden (D-DE)

Bingaman (D-NM)

Boxer (D-CA)

Brown (D-OH)

Byrd (D-WV)

Cantwell (D-WA)

Cardin (D-MD)

Clinton (D-NY)

Dodd (D-CT)

Dorgan (D-ND)

Durbin (D-IL)

Feingold (D-WI)

Harkin (D-IA)

Kerry (D-MA)

Klobuchar (D-MN)

Lautenberg (D-NJ)

Leahy (D-VT)

Levin (D-MI)

Menendez (D-NJ)

Murray (D-WA)

Reed (D-RI)

Reid (D-NV)

Sanders (I-VT)

Schumer (D-NY)

Stabenow (D-MI)

Tester (D-MT)

Wyden (D-OR)

Of course, Obama was making a political calculation. And he did not pretend to
be happy with his vanishing from that list. Still, on two important points he
contributed unnecessarily to misinform the public regarding the nature of the
new law. He pretended it was a compromise. In fact, as Senator Feingold plainly
said and as Christopher Bond gloated, it was a capitulation. Obama also shaded
the truth without making a false statement when he assigned as a reason for his
vote that the law was needed to renew warrants that would expire in August. The
false inference was that the U.S. would be left in some degree defenseless if
the law did not pass in its present form. But other ways could have been found
of renewing the warrants; a president who did not use them would be to blame
for the consequences.

The value of defending a principle in politics is that, even if you lose the
contest, a truth has been told. Some people have heard and been moved, and in
that way something has been gained. The swindle, on the other hand, of purely
political calculation is that all its value depends on winning. Lose, and you
have lost more than a contest; you have weakened your attachment to the best
reasons you ever claimed for fighting.

Calculation also may miscalculate. Obama's switch to the majority against the
fourth amendment buys him credit for prudence and reliable moderation among the
people who reward such virtues in the mainstream media (and in the corporations
that back them). But this bill was in no danger of not passing; enough
Democrats had safely gone over without Obama's help. But it also seems possible
that there were voters in places like Ohio and Michigan who were slow to trust
him and were waiting to see. Some of those voters surely felt, as many
Americans everywhere feel, a strong revulsion from the president's
aggrandizement of power. They were looking for a candidate to speak and act
against an administration that governs by fear.

A candidate who hopes to change a wrong policy that has sunk deep roots in the
political establishment must educate public opinion to support the change. That
education is a long process; if you begin it on the day you take office, you
have begun too late. Lincoln, throughout the 1850s, told the voters he was a
moderate and that the Compromise of 1850 was worth abiding by. We have to obey
the Fugitive Slave Law, he said, even though we know that slavery is wrong. But
when the Dred Scott decision was handed down in 1857, he made the speech of a
great educator, saying that every inference from that decision was wrong; and
though he did not counsel disobedience, he chose the occasion to assert his
disbelief in the premise that the rights of the slave holder to his property
superseded the rights of a black man under the Constitution. He drew a line,
then and there, and showed the character of the decisions he would support.

Obama appeared to have drawn his constitutional line at FISA (as he appears to
have drawn his foreign-policy line at the war in Iraq). With his shift on FISA,
he has kicked up dirt, this way and that around the line. It is impossible to
see where he drew it any more.