In a speech at Georgetown University yesterday, Attorney General Alberto Gonzales again attempted to justify the Bush administration's warrantless wiretapping program. Here's a breakdown of how he does it, and why he's wrong.
I. "It's always been done"
Gonzales' first support for warrantless wiretapping is "it's always been done":
It has long been recognized that the President’s constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have uniformly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice.
The problem with this statement is that federal courts have not "consistently upheld" warrantless surveillance. David Greenberg, a professor at Rutgers University and a Slate columnist, wrote in an Oct. 11, 2001 column that "the journalist David Wise noted in his 1976 book The American Police State -- a book far more measured than its title suggests -- the constitutionality of wiretapping and bugging (which are not the same thing) has always been murky." An examination into the history of federal wiretapping reveals that courts have not been clear and consistent in their rulings about the legality of warrantless wiretapping.
Federal courts have ruled on the issue of warrantless wiretapping and then overruled themselves a few years later. The final report of the Church Committee, which investigated intelligence abuses during the Vietnam War era (and the recommendations of which later became the Foreign Intelligence Surveillance Act of 1978, a.k.a. 50 U.S.C. 1801, et seq.), reflected a similar opinion. In 1967, the Supreme Court, in Katz v. United States, 389 U.S. 347, ruled that "the Fourth Amendment's warrant requirement did not apply to electronic surveillances." Six years later, the Court reversed itself. In United States v. United States District Court, 407 U.S. 297 (1972), the Supreme Court ruled that "the constitutional power of the President did not extend to authorizing warrantless electronic surveillance in cases involving threats to the 'domestic security.'" Prior to FISA, there was no standard or regulation for electronic surveillance, and "executive branch officials developed broad and ill-defined standards for the use of warrantless electronic surveillance," according to the Church Commitee report.
II. The president has the power to conduct warrantless electronic surveillance
Gonzales' second justification for warrantless wiretapping is that Congress, in its Oct. 2001 Authorization for the Use of Military Force, implicitly allowed the president to conduct such wiretapping:
The Resolution means that the President’s authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress. Thus, were we to employ the three-part framework of Justice Jackson’s concurring opinion in the Youngstown Steel Seizure case, the President’s authority falls within Category One, and is at its highest. He is acting “pursuant to an express or implied authorization of Congress,” and the President’s authority “includes all that he possesses in his own right [under the Constitution] plus all that Congress can” confer on him.
The "Youngstown Steel Seizure case" is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In 1952, when a nationwide steel workers' strike was looming, the president seized control of U.S. steel mills in the name of national security. Guess what? The Supreme Court actually ruled that the president did not -- did you get that? -- did not have the authority to seize private steel mills, as, (1) "There is no statute which expressly or impliedly authorizes the President to take possession of this property as he did here," and (2) "Authority of the President to issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers under Article II of the Constitution." Oh, and did I mention the third justification? "In its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes."
Yes, that's right: in 1952 the Supreme Court concluded that the president could not seize U.S. steel mills -- even in the name of national security -- because he had no constitutional authority to do so, either express or implied, and Congress had already supplied a way to deal with the strike in the form of the Taft-Hartley Act.
Now, let's apply this case to the current situation. We have an instance in which the president is (1) given no stautory authority to conduct warrantless electronic surveillance; (2) the president is given no Constitutional authority to conduct such surveillance; and (3) there is already a statutory solution to the problem, in the form of the Federal Intelligence Surveillance Act of 1978. Using Alberto Gonzales' own example, we find that the example actually supports the opposite of Gonzales' opinion. Gonzales is quoting Justice Jackson's concurring opinion, not the Court's majority opinion. But even Justice Jackson's opinion goes against Gonzales' rationale!
Justice Jackson, in his concurring opinion, articulated three situations in which the president's and Congress' authority might be at odds. The first situation -- quoted by Gonzales -- is when the president "acts pursuant to an express or implied authorization of Congress." This is when, as Gonzales says (quoting Jackson's opinion), "his authority is at its maximum." But -- and perhaps Gonzales fell asleep before he got to this part of the opinion -- Jackson discounts President Truman's steel seizure as falling within the scope of Category One, "for it is conceded that no congressional authorization exists for this seizure." In Category Two, "the President acts in absence of either a congressional grant or denial of authority," and as a result, authority is uncertain, for the president and Congress may both have authority. In Category Three, "the President takes measures incompatible with the expressed or implied will of Congress." It is in this category that presidential power "is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."
Again, Gonzales supports the opposite of his own opinion with his own example. President Bush suggests that his power is exclusive in this matter, which places this action in Category Three. Justice Jackson would actually disagree with Gonzales on this issue.
Nice try, Alberto. But not good enough. Some people actually read the court cases.
III. We need this to fight the War on Terr'
Gonzales' third justification is that warrantless surveillance is necessary for conducting the War on Terr' and the Supreme Court has affirmed that (sort of):
In [the Hamdi] case, the Supreme Court confirmed that the expansive language of the Resolution -- “all necessary and appropriate force” -- ensures that the congressional authorization extends to traditional incidents of waging war. And, just like the detention of enemy combatants approved in Hamdi, the use of communications intelligence to prevent enemy attacks is a fundamental and well-accepted incident of military force.
Unfortunately, Congress disagrees. The bipartisan Congressional Research Service released a 44-page memorandum [PDF] earlier this month, analyzing what it could of the president's warrantless wiretapping program. The conclusion of the Congressional Research Service is that most of the issues are murky. Legislation could be read in multiple ways; there is no clear distinction as to what is legal and what is not -- at least, it is not nearly as clear as Alberto Gonzales would have you believe it is. With the caveat that it doesn't know everything about the wiretapping program, since it is technically confidential, the Congressional Research Service concludes:
From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes.
[...]
While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.
If Alberto Gonzales submitted this in a law school class, he'd get a "D." No professor would accept these reasons as grounds for warrantless electronic surveillance, so why should the American people?
