With the confirmation hearings for his CIA director nomination set to begin on Thursday, General Michael Hayden will no doubt be grilled on the broadening scope and dubious legality of the domestic surveillance programs during his tenure at the NSA. As we learned last week, Hayden's NSA not only conducted warrantless electronic eavesdropping on Americans, but clandestinely built a massive database of their phone records as well. And just today, Brian Ross of ABC News revealed that he had been tipped off that the Bush administration is tracking journalists' phone histories as part of its expanding campaign to crack down on whistle-blowers.
But if there is a single question that should be put to Hayden during his Senate confirmation hearings next week, it is this:

Do you believe FISA is unconstitutional?

As I wrote back in February ("The Republicans' Constitutional Crisis"), this for President Bush and his allies is the secret that dare not speak its name. By citing the 2001 Authorization for the Use of Military Force and the President's commander-in-chief powers to justify NSA spying on Americans domestically, the administration has implied that the Foreign Intelligence Surveillance Act poses no curb on unlimited, unitary executive power. Only the staunchest Bush supporters have had expressed what the White House clearly believes but for legal and political reasons will not say: FISA is unconstitutional.
As background for the upcoming Hayden testimony, here then is "The Republicans' Constitutional Crisis" in full...

The Republicans' Constitutional Crisis
When it comes to President Bush's illegal domestic spying program, his Republican allies over the last several days have shown that discretion is indeed the better part of valor.
From the beginning, the administration's amen corner has aggressive claimed that the 2001 Authorization for the Use of Military Force (AUMF) and the wartime Commander-in-Chief powers give President Bush the statutory and constitutional basis for sidestepping the FISA process for domestic electronic surveillance. But most in the GOP are downright sheepish when it comes to the third argument that logically flows from their first two: FISA itself is unconstitutional. 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 is bound to fail.
A host of recent statements by Republican stalwarts in the White House and in Congress reflect the fear of provoking a constitutional crisis that would almost certainly boomerang against the GOP. For example, Senate Judiciary Committee member Mike DeWine (R-OH), who has advocated legislation codifying the NSA wiretapping program by excluding it from the purview of FISA, said on February 17th:

You know, there's been some controversy about whether or not this program is legal or is not legal. I think we need to get beyond that - we don't want to have any kind of debate about whether it's constitutional or not constitutional.

Many of DeWine's Republican colleagues have echoed his comments. Majority Leader Bill Frist (R-TN), the medical doctor who was so spectacularly wrong about Terri Schiavo and the transmission mechanisms of HIV/AIDS, said on Sunday, "I believe the program - I know the program is constitutional - that it is legal." Senator Pat Roberts (R-KS), chairman of the Intelligence Committee and the person chiefly responsible for blocking the Phase II inquiry into the misuse of pre-Iraq war intelligence, responded "yes" when asked by NBC's Tim Russert if "the Constitution gives the President of the United States the authority to do anything he believes is necessary to protect the country." It should come as no surprise that Roberts' spokesman Bill Duhnke in essence retracted his boss' earlier statement that the NSA program "should come before the FISA court."
The clearest signal regarding the Bush administration's fear of tackling FISA head-on came from Attorney General Alberto Gonzales. During Gonzales' February 6th testimony before the Senate Judiciary Committee, he repeatedly skirted questions as to whether FISA itself was an unconstitutional intrusion by Congress upon the President's Commander-in-Chief powers under Article II, Section 2:

That's why you have to interpret FISA in a way where you don't tee up that very difficult constitutional question under the canon of constitutional avoidance. (Response to Senator Durbin)

From the very outset, before the program actually commenced, it has always been the position that FISA cannot be interpreted in a way that infringes upon the president's constitutional authority. (Response to Senator Leahy)

I think there would be a question, a good debate and discussion about whether or not -- what does that clause (Article I, Section 8) mean and does it give to the Congress, under the Constitution, the authority to impose regulations regarding electronic surveillance? I'm not saying that it doesn't. I'm just saying that I think that's obviously a question that would have to be resolved. (Response to Senator Feinstein)

The administration's wariness to challenge FISA is an outgrowth of its legal dubious strategy to date. The Republican defense of the domestic spying program has hinged on two central arguments - one statutory, one constitutional - first elaborated in a January 19, 2006 memo from the Justice Department.
The statutory claim is based on the Authorization for the Use of Military Force (AUMF) passed by Congress on September 18, 2001 in response to the 9/11 attacks. The AUMF, Bush supporters insist, constituted a statutory authorization by Congress consistent with the requirements of Section 109 of FISA that prohibits any person from intentionally "engag[ing]...in electronic surveillance under color of law except as authorized by statute." According to the administration, the AUMF, which authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons...in order to prevent any future acts of international terrorism against the United States," gave Bush that statutory cover. Gonzales and administration supporters further argue that the Supreme Court's 2004 Hamdi decision, which narrowly upheld the government's ability to detain American citizens captured as combatants in the field in Afghanistan, recognized the AUMF as applying to virtually any "incident" of war, including domestic intelligence gathering.
Unfortunately for the Bush White House, the AUMF statutory argument has been widely lambasted across the political spectrum. Former Senate Minority Leader Tom Daschle wrote that the Senate explicitly rejected a last minute Bush administration attempt to add the words "in the United States and" after "appropriate force" in the 2001 AUMF text. During the Gonzales hearings, Judiciary Committee Chairman Arlen Specter (R-PA) concurred with Daschle's assessment and rejected the Hamdi argument outright:

Well, I think you're dealing with very different circumstances when you talking about a soldier on the field, as opposed to a United States person whose conversations are being electronically surveilled.
The resolution of September 14 did not add the words "in the United States" after the words, quote "appropriate force." That was rejected to give the president the broad authority, not just overseas, but in the United States. Isn't that a clear indication of congressional intent not to give the president the authority for interceptions in the United States?

As most observers have concluded, FISA's provision for obtaining warrants 72-hours after the fact should have been more than sufficient for President Bush. The data tells the story. Since 2001, the FISA courts have rejected only six and modified only 179 applications out of a total of 5,645 requests for court-ordered surveillance by the Bush administration. (Interestingly, the courts modified only two of 13,102 requests during FISA's first 22 years.)
Which brings us to the White House's constitutional argument for the NSA domestic spying program. The January 19 DOJ memo cites the President's Commander-in-Chief powers under Article II, Section 2 of the Constitution as justifying the domestic NSA surveillance program:

The NSA activities are supported by the President's well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States.

The memo further argues that the Supreme Court has given the President broad discretion in the definition and use of force to repel attacks. The President "must determine what degree of force the crisis demands" and need not await congressional sanction to do so. These encompass "those functions which may constitutionally be performed by the military arm of the nation in time of war," including "important incident[s] to the conduct of war." Again, for the Bush administration, domestic surveillance of U.S. persons is an "incident" to the conduct of war.
In his testimony, Gonzales echoed the DOJ memo, including its Supreme Court quote that the President is "the sole organ of government in the field of international relations." More important, Gonzales tried to disarm the three-part test of presidential war powers stemming from the 1952 Youngstown Steel case. Responding to Senator Grassley, Gonzales stated that with the AUMF, Congress granted President Bush the power to conduct domestic electronic surveillance without warrants:

The first part is where the president is exercising his authority with the concurrence, in essence, of Congress. We believe that's what is occurring here. We believe the authorization to use military forces is such a concurrence by Congress for the president to engage in this kind of activity. And, therefore, we believe the president's power is at its zenith in this first category.

Tellingly, Gonzales continued to declare that even if there was disagreement on this point and President Bush was seemingly acting "in a way that's incompatible with congressional action" (and thus violating Justice Jackson's third test in Youngstown), the President's actions were still constitutional:

I believe that even under the third part, that the president does have the constitutional authority. I will just remind the committee that Chairman Roberts just recently submitted a letter to the committee. And he, himself, opined that he also believes that if we were in the third category, that he believes that the president would have the constitutional authority to engage in these kind of activities.

Sadly for the Bush administration, the overwhelming weight of constitutional opinion is working against them. In a February 13th letter, the American Bar Association cautioned President Bush against acting outside of FISA, and urging adoption of its recommendations to ensure the fight against Al Qaeda "is conducted in a manner reflective of the highest American values." On January 9th, 2006, a distinguished, bi-partisan group of American constitutional legal experts and scholars wrote to congressional leaders and strongly rejected the arguments put forth by the Bush administration:

The DOJ also invokes the President's inherent constitutional authority as Commander in Chief to collect "signals intelligence" targeted at the enemy, and maintains that construing FISA to prohibit the President's actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect signals intelligence on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, and not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.

It is at this point - claiming the President's authority is exclusive and that FISA is therefore unconstitutional - that most of Bush's Republican allies back down. Both the DOJ memo and Attorney General Gonzales ("Senator, I don't believe that it is possible for any president [Carter] to waive, for future presidents, any constitutional authority, any authority given to a president under the Constitution") implied it, but ultimately shied from making that unprecedented and unsupportable claim. Senator Roberts in his 19 page letter to the Judiciary Committee stopped at that line as well. Perhaps the only conservative voice publicly claiming that FISA is unconstitutional belongs to Berkeley professor John Yoo, formerly of the White House Counsel's Office:

Neither statute [the War Powers Resolution or AUMF], 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.

Such extreme views are not fodder for Republican politicians seeking reelection in 2006. Instead, we can expect more cowardice from the likes of Mike DeWine and his plea that "we don't want to have any kind of debate about whether it's constitutional or not constitutional."
NOTE: For the latest news, legal documents, hearing, statutes and other key materials, visit the Perrspectives NSA Scandal Resource Center.