Supremes Decimate Bush's Spying Argument

08/11/2006 11:48 am ET | Updated May 25, 2011

When the Supreme Court rejected President Bush's executive power claims in last month's decision invalidating the Guantánamo military tribunals, it also shredded the administration's arguments for domestic spying. Now a bipartisan group of legal experts and former government officials are explaining to Congress exactly how the court's ruling affects the NSA's illegal domestic spying program.

President Bush (and his attorneys) argue that he can bypass the law because of his wartime authority as Commander in Chief. That is a fundamental part of the administration's defense of everything from unlimited detentions in Cuba to warrantless spying in Nebraska. For spying, the Justice Department argues that the 2001 Authorization to Use Military Force (AUMF) actually authorized the spying program by implicitly repealing the 1978 Foreign Intelligence Surveillance Act (FISA), which makes warrantless wiretapping a felony. Second, they claim that the President has inherent authority to wage war under Article II of the Constitution, and can therefore disregard any statutes that restrict his ability to do so.

Now turn to the Court's Guantánamo decision, Hamdan. The administration was first claiming that the AUMF implicitly authorized Bush to create his military commissions, and second that the President has inherent constitutional powers to contravene existing statutes in order to defeat the enemy in times of war. Sound familiar?

The Court ruled that neither of these arguments has any merit. The majority opinion concluded that "there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter" the Uniform Code of Military Justice--clarifying the fact that the President had no right to create commissions that violate pre-existing military law. In response to the administration's Article II claim, the Court found that although the President has the power to convene military commissions without congressional authorization, he may not disregard what limitations Congress has placed on his powers.

Given Hamdan's sweeping rejection of these two core arguments, it would seem that Bush's case for wiretapping is toast. But Bush's lawyers don't think so. They are straining to argue that NSA situation is totally different from Hamdan.

Enter some of the most eminent constitutional scholars in the country. This letter is signed by professors from law schools like Harvard, Yale, and Stanford, many with a history of government service, and it systematically rebuts the government's attempts to distinguish the NSA case from Hamdan.

As for the government's first argument, the case for wiretapping under the AUMF is actually weaker than its case for military commissions. Wiretapping is like the military commissions in that there is "nothing in the text or legislative history" of the AUMF indicating that Congress intended to repeal FISA's guidelines. Unlike military commissions, however, the law governing wiretapping is crystal clear. As the law professors aptly remind us: "FISA expressly declares that FISA itself prescribe[s] the 'exclusive means' of engaging in electronic surveillance." If the AUMF could not implicitly alter a set of vague guidelines about military commissions, then it certainly could not overturn a clear rule restricting spying.

Furthermore, FISA provides a special wartime surveillance provision that authorizes surveillance outside of the FISA guidelines for only 15 days after a declaration of war. It was clearly the intent of Congress to limit the President's surveillance powers even in times of war. If Bush was interested in modifying this provision for wiretapping, he could lawfully do so by amending the 15-day provision set-forth by congress.

The President's Article II argument is equally dubious. He contends that, unlike the rules governing military commissions--which were enacted in compliance with Congress's Article I authorities--Congress did not even have the constitutional authority to enact FISA. According to the letter, "this argument borders on the frivolous." FISA has been in place for many years, passed by Congress and signed by the President, and has operated appropriately since its inception. It was enacted pursuant to Congress' long recognized powers to regulate communication between states and nations, to make legislation "necessary and proper" to carry out other constitutional powers, and to make rules governing the country's military forces.

Finally, the DOJ argues that FISA prevents the President from performing his duty to defend the Nation. But as the letter argues, "the President also has a duty to take care that Congress's laws are faithfully executed. And the duty to defend the Nation does not give the President a blank check to ignore congressional statutes or the Constitution."

Concurring opinions from Justices Kennedy and Breyer made the same points. Justice Kennedy stated that judicial enforcement of rules laid down by Congress, even during national emergencies, "gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment. These principles seem vindicated here, for a case that may be of extraordinary importance is resolved by ordinary rules." As Justice Breyer put it:

"Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine--through democratic means--how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same."

The same could be said of the process of judicial review: As I've argued repeatedly in this space, oversight by courts ensures (among other things) that the executive is doing a competent job in its law-enforcement efforts against terrorism. The overwhelming majority of scholars agree that the administration has no argument left in defense of the NSA Program after Hamdan--making the real question whether the administration can somehow evade judicial review (via the state secrets doctrine, or the provisions in the Specter bill that would send our case to a secret court). The administration has argued that allowing judicial review is as dangerous to the national security as following the rules about wiretapping laid down by Congress in FISA. Luckily--as Hamdan proved--the last word on these issues belongs to the courts.