The Real Issue with FISA

Talk about missing the point. The Senate and the media are asking useless questions:

• Did the President break the FISA law?
• Was the Congress properly informed?
• Is FISA outdated?
• Is the program useful enough to justify domestic wiretaps?

Who cares! The legality of a program that everyone vehemently agrees is useful to our national defence is a moot point. If it isn't legal today, then it will be soon. If the Democrats think the law-breaking on this issue is a political liability for the President, then they are mistaken.

The key question that is only rarely being asked has not yet been answered. This question should be informing the public debate, and it has not been addressed by the President or Congress to anyone's satisfaction as yet:

Are there any limits on executive power in wartime?

Here is the logic. The president chose to ignore the FISA law. This is not important in itself (he did so with reason and with "safeguards" in place). This is important because of the precedent it sets. If the President does not believe he is beholden to the laws passed by Congress, then we must wonder whether or not there are any limits or oversight over presidential action.

The rest of this post will explain why it is obvious that the law was ignored, then why it is so significant that it was.

The President Believed He Had the Power to Ignore FISA

Since it underpins my argument, I'm forced to point out that the President did choose to ignore the FISA law. Noone can argue that the President's actions are in direct violation of FISA (even the administration doesn't deny that). The legal argument being made by AG Gonzales is that powers inherent in Article II of the Constitution, paired with Congress' authorization to fight Al Qaida constitute a "statute" envisioned within FISA as an exemption from itself.

However, we must assume any such statute should be clear and explicit. Any lower standard would make FISA useless to begin with. So we must see how explicit this exemption statute is.

Article II says nothing on this issue beyond that it is the President's job to defend the country. Later Supreme Court rulings have interpreted that power to include warrantless surveillance of wartime enemies on foreign soil (but say nothing about breaking existing laws).

That leaves us with the authorization to use force against Al Qaida. The text of that authorization is:

That the President is authorized 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Not only does the text of the resolution not mention the use of force domestically, but according to Tom Dashle who helped negotiate the text of the resolution...

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

Washington Post Op-Ed by Tom Dashle, 12/23/05.

So not only did Congress specifically deny the authorization for use of "appropriate force" within the United States, but the White House (at the time) felt that the explicit addtion of those words were needed to permit domestic action.

So that is far too much time spent on the unimportant issue. Clearly the president chose to ignore the laws on the books because he believed he had the right to do so in order to protect us all. That leads us to the key question:

Is There Anything The President Cannot Do?

Bob Schieffer: Do you believe that there is anything that the President cannot do if he considers it necessary?

President Bush: I don't think a President can order torture. I don't think a President can order the assasination of the leader of another country with which we are not at war. Yes, there are clear red lines.

From Face the Nation Interview aired 1/29/06.

If laws on the books are not sufficient to deter presidential action to protect us, what is the criteria? As a country, we must know what those "red lines" are. Why can't a president order torture, but can order domestic surveillance? Without clear criteria we take a huge risk of immoral abuse of this executive power over time.

For example, are the following actions permitted without Judicial or Legislative oversight?

• Detainment of American's suspected of terrorism without representation
• Surveillance of any American with or without an international side of the call
• Imposement of martial law in an area suspected of terrorism
• Postponement of local or national elections to ensure the safety of polling places
• Extension of a presidential term?

I'm not suggesting the George Bush is about to round up all Muslims and put them into camps, or begin bugging political opponents on the grounds they may be meeting with terrorists.

However, we've now learned that there is no oversight to prevent that kind of abuse. We must clearly define limits-of-power to protect ourselves from less scrupulous future actions. Past democracies have turned to authoritarian regimes without those limits. We must aggressively protect and enforce the limits and balances dictated by the Constitution.

Just tell us what the criteria is. It seems to me that "the Executive cannot break or ignore a federal law" might be a good start. I'm sure we can all agree on something that provides the protections we need while also protecting our democracy.

Too Late for the Court

Although I'd hoped to have made this post several weeks ago, it is nonetheless fitting that I'm posting this now: well after the Alito confirmation hearings and public debate. Yes, this posting is too late to inform the debate; but similarly, the entire public debate occurred far too late to make any difference in the makeup of the Court.

The fate of the Supreme Court was sealed when we elected our President in 2000 and 2004. The President picks the justices; and we selected a socially conservative executive who openly opposes a woman's right to choose.

After the fact of the 2004 election results, it was both futile and divisive to fight the nomination of a Supreme Court candidate who was clearly qualified for the job. Certainly, the confirmation process was useful and necessary to guarantee Justice Alito's credentials. However, all the attempts by democrats to get Alito to admit he'd overturn Roe or eliminate all controls on presidential power were doomed to failure from the start. Even had they succeeded in rattling Justice Alito into a public-relations mistake, the next candidate would have been just as conservative.

Even though I'm appalled that we have a court becoming more and more conservative, I believe we must respect the process. Within the rules it was fine to try to find any reasonable reason to keep Alito off the court. Once those arguments were exhausted, the Senate should have voted on his qualifications and ability to fairly evaluate cases, not on his likelihood to overturn Roe. Had there been a Democrat in the White House, we less conservative citizens would have demanded as much for any candidate.

I believe that the majority of American's would not support (what I believe will be) Alito's stance on social, right-to-life and executive-powers issues. If you are upset about the Court's possible overturn of Roe, but you voted for Bush in 2004, then shame on you for not realizing the implications of your vote. The makeup of the Court was the largest (albeit rarely-discussed) issue of the 2004 election.

But that ship has sailed.

Right for All the Wrong Reasons

How did we end up where we are with our policy in Iraq? The administration's National Strategy of Victory in Iraq is a clear, concise and focused document. Shockingly, I find myself agreeing with the administration almost point-by-point. Here are a few:

• "An emerging democracy in Iraq will change the regional status quo that for decades has bred alienation and spawned the transitional terrorism that targets us today."
  
  
• "Failure in Iraq will embolden terrorists..."
  
  
• "It is not realistic to expect a fully functioning democracy [sic] to be in place less than three years after Saddam was finally removed from power."
  

This is wonderful. The Bush Administration is publicly stating several new strategies that were either understated or never stated before:

• Regime change in Iraq is a vital U.S. interest, but not because of an imminent threat of WMD use; it is vital because we need a beacon of democracy in the region to provide an alternative to extremism.
  
  
• That goal is attainable, but not with just a few billion dollars and a short military campaign, but rather with a long-term (more than three years at least) and huge resource commitment to political, security and economic efforts.

The administration will reply that this is not a change in policy, but I cannot swallow that explanation. I was there. We were all there when we were told that the reasons for invading Iraq were:

• Potential use of WMDs by Iraq.
  
  
• Distribution of WMDs to terrorists who might use them directly against American targets here or abroad, bolstered by...
  
  
• Repeated claims that there was a linkage between Al Qaida and Saddam Hussein.
  

What is the explanation for the discrepancy between what we're being told today and the justifications for war back in 2002? There are only 2 logical explanations:

• This was our strategy all along and it just wasn't "spotlighted," or
• The administration adjusted strategy when political expediency forced a change.

This blog entry will assume the best intentions and motivations of the administration. This leads us to assume the first of those explanations: that today's stated policy was our strategy all along.

Since we have no proof (yet) that intelligence was intentionally manipulated to make the WMD claims, I will also assume for the purposes of this blog entry that the administration truly believed in the WMD and Al-Qaida-link intelligence when they put these justifications for war in front of us.

So assuming the best of our leaders and that today's stated strategy was always the policy, here is what must be the timeline:

• Early on in the administration there was a recognition that the key to security and stability in the Middle East was a democratic Iraq.
  
  
• Knowing these lofty justifications would be a difficult "sell" to Congress and the American people, Bush focused on the WMDs as the key argument (believing it true and thus highlighting only one in the most urgent of his many reasons for removing Saddam).
  
  
• Bush assumed that political stability in post-war Iraq would come quickly and the longer-term goals of democracy would be attainable with minimal additional cost.
  
  
• Since things didn't work out with minimal additional cost, the administration is now forced to bring those longer-term, loftier goals to the forefront of the stated policy.

Therefore, regime change was on the agenda from the beginning. The difficulty would be convincing the American people to "get behind" such an effort. 9-11 provided a convenient way to do just that. This is consistent with Richard Clarke's claim that Bush pulled him aside on September 12th asking him to search for a linkage between 9-11 and Saddam.

When a direct linkage was not found, WMDs, paired with intelligence "linking" Saddam to Al-Qaida provided the most effective argument. Recognizing this as the best way to get the Congress and the rest of America behind the war, the administration focused on this argument almost exclusively at the time.

At the same time, again assuming the best of intentions, the administration severely underestimated the scope of the aftermath. The insurgency was unanticipated and security turned out to be far more difficult than anyone predicted. Also unanticipated were the political difficulties in creating a government and the infrastructure challenges in re-establishing basic services in support of the economy. The administration assumed that we would be welcomed as liberators and that it would be "easy" (relative to what we are experiencing) to accomplish the longer term goals now explicitly stated in our National Strategy.

Since the short-term approach didn't work quickly enough to establish the democratic beacon of hope, the administration is now forced to either change or fully publicize this as the central pillar of our strategy there. Now that the WMD threat is clearly gone, we need a new justification.

In almost no scenario do I believe the Bush administration felt that WMDs were the only justification for war. In truth, it would be naive for any of us to think there is only one reason. We've heard many reasons floated (oil, Bush Sr. assasination-attempt payback, WMDs, freedom and democracy, Al-Qaida linkages, moral outrage at Saddam, etc.) all of which make sense and probably combined to influence the final decision.

In this "best-intentions to the administration" theory, the key undoing of the plan was underestimating the post-war time it would take to establish a stable government. This critical error was avoidable and was predicted by many (I remember at least reading Thomas Friedman detailing these kinds of difficulties before the invasion). Nonetheless, we assume the best of intentions and an honest miscalculation.

However, the real mistake was focusing America and the international community on WMDs as the primary justification for war. The American people should have been told the real goals, which would have fueled public debate on how to accomplish those objectives. This could have led to:

• Realistic expectations of ordinary Americans with the commitments and sacrifices necessary to achieve the goals--and therefore--longer-term support for the war.
  
  
• Recognition of the potential post-war issues. My assumption is that had our true objectives been exposed, public debate would have uncovered the post-war risks far better than they did and better prepared us for them.
  
  
• More international support for the war effort, so we could share the load and better establish a new government in Iraq.
  
  
• The real possibility that none of this would have "flown" with the public and America would not have supported a decision to go to war. This is a better option than fighting a war we don't end up having the stomach to finish.
  

I'd hope we'd have recognized the risks of not fighting this war and moved forward removing Saddam. But we're doomed to fail in an effort that is undermined by political spin and expediency.

Wouldn't it have been better to have been told the truth from the beginning?