Yesterday, the Justice Department released its most detailed white paper yet [PDF] on the legal justification for warrantless electronic surveillance.

According to The New York Times, the document relies heavily on Congress' Sept. 14, 2001 resolution authorizing the president to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

The white paper also relies on the "unitary executive" interpretation of Article II of the Constitution. This interpretation is a relatively new school of thought that says that the executive is the most powerful branch of government, more so than the legislature or the judiciary, and if he needs to supercede those bodies -- especially in a time of war -- then he is justified in doing so. This interpretation is flawed, because the Constitution makes no distinction about presidential powers in times of war; such an interpretation is invented by those who wish to justify great presidential powers. Like the legislature's powers, the executive's powers are enumerated, and if a power isn't listed specifically, then the executive doesn't have it. The only thing Article II says about war is, "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." It mentions nothing about presidential power being greater during time of war, and I believe that the writers of the Constitution intended it that way.

The white paper suggests that the president, "as Commander in Chief and sole organ for the Nation in foreign affairs," is allowed to conduct warrantless electronic surveillance in the name of "disrupt[ing] armed attacks on the United States." The white paper also misconstrues FISA. The paper claims that FISA "also contemplates that Congress may authorize such surveillance by a statute other than FISA," and the Sept. 2001 Authorization for Use of Military Force (AUMF) is just such a statute, and thus, the surveillance is being conducted under the authority of AUMF by way of FISA. Except, that's not what FISA says. While FISA says it is a criminal act if a person "engages in electronic surveillance under color of law except as authorized by statute," FISA also says that the president can only engage in warrantless surveillance in three specific instances "notwithstanding any other law" (emphasis mine). "Notwithstanding" means "despite." In regular English, the sentences reads, "Despite what any other law might say, the president may only engage in warrantless electronic surveillance blah blah blah." 18 U.S.C. 2511(2)(f) also says that "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted." Note the words "exclusive means." Meaning that there is no lawful procedure for conducting domestic surveillance outside of the procedures set forth in chapter 119 or chapter 121 of Title 18 or FISA. Was that clear enough? FISA is in conflict with the AUMF, and as the older law, FISA wins, unless AUMF specifically amended FISA to include an exception, which it didn't.

The white paper also relies on a Supreme Court interpretation of the president as the "sole organ" of the nation's foreign affairs. But foreign affairs aren't the issue, here. No one is suggesting that the president doesn't have the authority to conduct wholly foreign surveillance. Even FISA says that wholly foreign surveillance is fine. What isn't fine and what the argument is really about is the president's authority to conduct domestic surveillance or surveillance that involves "United States persons." That's where FISA comes in. The president's foreign authority is not at issue; rather, his authority to spy on Americans or people residing in America is at issue.

And yet the Bush administration touts its ability to be above the law. In this week's Time, Andrew Sullivan discusses the implications of presidential "signing statements," which are little statements the president can add to legislation as he signs it. This president is using them to put in writing how he will choose to enforce a particular law, and how he might make exemptions for himself or others. For example, he signed into law a bill containing John McCain's anti-torture amendment. However, at the end, Bush added a stipulation: "The executive branch shall construe Title X in Division A of this Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent witrh the constitutional limitations on the judicial power." Sullivan replies:

Translation: if the President believes torture is warranted to protect the country, he'll violate the law and authorize torture. If the courts try to stop him, he'll ignore them too. This wasn't quibbling or spinning. Like the old English kings who insisted that Parliament could not tell them what to do, Bush all but declared himself above a law he signed. One professor who specializes in this constitutional area, Philip J. Cooper of Portland State University in Oregon, has described the power grabs as "breathtaking."

Sullivan later reveals that Samuel Alito, as a member of Reagan's Justice Department, invented the "unitary executive" interpretation in 1986. He suggested in a memorandum that the president has just as much control over legislation as the legislature, "[s]ince the president's approval is just as important as that of the House or Senate."

If it ever gets to the Supreme Court, I'm relatively confident that the court would rule the same as it did for the line-item veto under Clinton: unconstitutional. The Constitution says the president can either sign a bill or veto it. He is not given the power to veto just the parts he dislikes, and he is not given the power to alter a bill in any way. The Constitution is quite clear on this issue -- so clear that it is the first sentence of Article I: "All legislative powers herein granted shall be vested in a Congress of the United States." Not given fifty-fifty to the president and Congress. All of the legislative power belongs to Congress. Altering a bill so as to change its scope and enforcement is altering the legislation, and the executive has no such authority. The "unitary executive" has no basis in the Constitution and was fabricated out of whole cloth in order to grant the president greater powers.

Legally, we are not at war. While we may be in "a state of armed conflict," Congress has never formally drafted articles of war. That keeps things nice and ambiguous. We're fighting enemies in foreign countries, but we're not at war. We may in a "state of war," but we're not "at war." The president gets all the authority given to a Commander in Chief in a time of war with the advantage being that we don't have to follow traditional rules of warfare since we're not technically or legally at war. The Bush administration has relied on an ambiguity -- either maliciously or through ignorance - of legal language in order to get its points across. We can be at war without being at war; the president can have authorities that he doesn't have; and we can be spying without spying -- at least, as long as no one knows about it.