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Cheney's Law and the Constitutionality of FISA

October 17, 2007

Last night's airing of the PBS Frontline documentary "Cheney's Law" could not have come at a more fitting time. As Congress begins debate on a new FISA bill and the issue of immunity for telecommunications firms, Attorney General nominee Michael Mukasey begins confirmation hearings in the Senate. But as Frontline reminded us last night, the architects of the Bush administration's NSA domestic surveillance program believe FISA itself is unconstitutional.
First, a little background. Cheney's Law describes the Vice President's decades-long effort to expand the scope of presidential authority centering on a virtually limitless notion of wartime powers as commander-in-chief. Aided by his current chief of staff David Addington, former Office of Legal Counsel stalwart John Yoo and current OLC nominee Steven Bradbury, Cheney drove the Bush administration's unprecedented claims of presidential authority to detain American citizens, authorize torture and intercept the communications of American citizens.
But as the debate over FISA heats up with the specter of President Bush's looming veto on the issue of telecom immunity, it's clear that the administration braintrust considers the FISA itself an unconstitutional intrusion on the President's powers and commander-in-chief. As John Yoo told Frontline:

"I think that there's a law greater than FISA, which is the Constitution, and part of the Constitution is the president's commander-in-chief power. Congress can't take away the president's powers in running war. They are given to him by the Constitution, in the same way that Congress couldn't pass laws saying you can't invade Normandy or you can't place Europe first in World War II. There are some decisions the Constitution gives the president, and even if Congress passes a law, they can't seize that from him."

That claim, however, is one the President and his Republican allies in Congress have been understandably reticent to make publicly. As I wrote in February 2006, their trepidation is well founded; as a matter of law and of politics, an attack by Republicans on the constitutionality of the Foreign Intelligence Surveillance Act was bound to fail. (For more details, see "The Republicans' Constitutional Crisis.")
Instead, the true believers of the Bush administration couched the love for presidential power that dare not speak its name in others terms. Until President Bush signed the so-called Protect America Act, his regime of warrantless NSA domestic surveillance rested upon a very shaky three-legged legal edifice. The first claimed by Bush apologists was that Congress' 2001 Authorization for the Use of Military Force (AUMF) gave the President a blank check to intercept the international communications of U.S. residents without warrants. The second, more sweeping assertion was that the so-called Terrorist Surveillance Program fell within the President's Article II power as commander-in-chief. Together, the President's amen corner at the DOJ asserted, these powers granted by Congress and the Constitution allowed the Bush administration to bypass the clear intent of the 1978 Foreign Intelligence Surveillance Act (or virtually any other act of Congress). As Yoo wrote in an infamous September 25, 2001 memo:

We think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

Which is why the Democrats' capitulation on the August FISA bill in the face of such an extreme power grab was so devastating. They not only had the votes to safeguard American civil liberties and prevent the legalization of past Bush White House criminality. On FISA as we knew it before August 5, 2007, Democrats had the law - and public opinion - on their side.
That sad chapter may history, but Democrats can still draw a line in the sand and force the President's hand on FISA and NSA domestic surveillance. In the wake of revelations that the NSA commenced its program prior to 9/11, that the administration may have retaliated against Qwest for its refusal to provide customer data to the agency and that Verizon turned over subscriber calling information without warrants, Democrats should call the President's bluff on retroactive immunity for the telecom companies. False claims by DNI Michael McConnell and the President's amen corner that FISA changes were central to breaking up the German terror plot or to needed to prevent kidnappings of U.S. troops in Iraq should be debunked. Further, Senate Democrats led by Dick Durbin, Russ Feingold and Ted Kennedy should continue to block the nomination of NSA homeland spying architect and torture advocate Steve Bradbury to head the DOJ's Office of Legal Counsel.
As Frontline made clear last night, Cheney's should not be the law of the land.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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