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• Is FISA outdated?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.