Administration critics continue to insist that Judge Michael Mukasey not be confirmed as attorney general unless he reverses his position and agrees that the President must comply with the Foreign Intelligence Surveillance Act (FISA). As explained by Yale Law School Professor Jed Rubenfeld in a recent
New York Times op-ed, Judge Mukasey is undermining “the single most fundamental principle of the Constitution — that everyone, including the president, is subject to the rule of law.”
The real issue here is not whether the President is “above the law,” but rather which “law” he must see “faithfully executed” when there is a conflict between the Constitution and an inconsistent statute. I submit that his highest duty is to the Constitution itself, and that our real problem here is that Congress has forgotten that it, too, is subject to the “rule of law.”
In 1803, Chief Justice John Marshall declared in Marbury v. Madison that “an act of the legislature repugnant to the Constitution is void.” From the earliest days of our history until the mid-1970s, it was understood by all three branches that – in no small part because Congress could not be trusted to keep secrets – the Constitution had left the President (to quote Federalist No. 64) “able to manage the business of intelligence as prudence might suggest.” During a House floor debate in 1818, the legendary Henry Clay declared that expenditures from the President’s “secret service fund” were not “a proper subject of inquiry” by Congress. And this was in keeping with existing appropriations acts, which from the earliest days of the presidency of George Washington had told the President he need account specifically only for diplomatic and intelligence expenditures which “in his judgment may be made public . . . .”
When Congress passed the first wiretap statute in 1968, it expressly declared that nothing in the new law would limit “the Constitutional power of the President” to collect foreign intelligence information. Every Administration from FDR to (and including) Jimmy Carter engaged in warrantless foreign intelligence wiretapping.
In the 1980 Truong case, for example, the Fourth Circuit Court of Appeals noted that the Carter administration “did not seek a warrant for the eavesdropping on Truong's phone conversations or the bugging of his apartment.” Instead, it relied upon a “‘foreign intelligence’ exception to the Fourth Amendment's warrant requirement.” The court upheld the Carter Administration’s position that: “In the area of foreign intelligence . . . the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.”
In the 1989 Von Raab case, the Supreme Court reaffirmed “the longstanding principle that neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” Other well-established exceptions to the Fourth Amendment’s warrant requirement include border searches, searches of commercial airline passengers and their luggage, and the requirement imposed by Congress that all citizens who wish to enter a congressional office building to exercise their constitutional right to petition their government for redress of grievances must submit to a warrantless search of their persons and possessions absent the slightest probable cause to believe they pose the slightest threat to anyone.
When FISA was being enacted in 1978, Carter Administration Attorney General Griffin Bell told the Congress that FISA “does not take away the power of the President under the Constitution” in this area; but he explained that the statute could nevertheless still work, because President Carter was “agreeing to follow the statutory procedure.” That was Carter’s prerogative, but neither he nor Congress could take away the constitutional powers of future presidents. Amending the Constitution requires the approval of three-fourths of the states.
The Foreign Intelligence Surveillance Court of Review (created by FISA and composed of federal appeals court judges) noted in a unanimous 2002 opinion that every federal court to decide the issue held the President has constitutional power to authorize warrantless foreign intelligence electronic surveillance, and added: “FISA could not encroach on the President’s constitutional power.”
While it is true that the Supreme Court has never decided this issue, it has had at least six opportunities to require a warrant for foreign intelligence electronic surveillances or otherwise limit presidential power in this area – and it has each time declined to do so. In the 1967 Katz case that first required a warrant for wiretaps, the Court expressly exempted “national security” wiretaps from its holding; and when it required a warrant for national security wiretaps of purely domestic targets in 1972, it repeatedly emphasized that its holding did not limit electronic surveillance of the “activities of foreign powers and their agents” in this country. The Supreme Court has had no less than four other opportunities to impose a warrant requirement on foreign intelligence electronic surveillance when cases have been appealed, and – as usually happens when the circuit courts are in accord (unless, of course, the justices believes they are uniformly wrong) – it has on each occasion refused to grant certiorari.
Sadly, much of the contemporary debate over presidential claims of power to ignore “laws” has failed to appreciate the alarming congressional practice since the Vietnam War of enacting flagrantly unconstitutional statutes. That is much of the explanation for the increased use of presidential “signing statements” in recent decades. On June 11, 1976, Senator Robert P. Griffin (R-Mich.) inserted a lengthy statement I had drafted into the Congressional Record explaining why “legislative vetoes” of executive department actions were unconstitutional. Seven years later, the Supreme Court echoed those arguments in reaching the same conclusion in the Chadha case. Shockingly, the congressional response to Chadha has been to enact more than 500 new unconstitutional legislative vetoes over the past two-dozen years.
Some of these unconstitutional statutes have done serious harm to our national security and facilitated terrorist attacks that have claimed thousands of American lives. On May 19, 1988, the Congressional Record included speeches by Senators Sam Nunn, John Warner, and several of their senior colleagues denouncing the harm done by the 1973 War Powers Resolution to our national security. Future Senate Majority Leader George Mitchell, for example, declared that the statute “threatens not only the delicate balance of power established by the Constitution. It potentially undermines America’s ability to effectively defend our national security.”
I strongly share the view expressed by Gen. P. X. Kelley that the highly partisan congressional War Powers Resolution debates in September 1983 about continuing our peacekeeping mission in Lebanon provided a major incentive for the terrorist bombing of the Marine barracks in Beirut the following month that killed 241 sleeping Marines. As Commandant of the Marine Corps, Gen. Kelley had cautioned the Senate Foreign Relations Committee of that danger in the early stages of the debate – but his cautions were ignored. More than three years before the 9/11 attacks, Osama bin Laden told ABC News that the prompt American withdrawal from Beirut following the October 23, 1983, bombing proved “the weakness of the American solder” and that America was “unprepared to fight long wars.”
FISA itself clearly made bin Laden’s 9/11 attacks easier. General Michael Hayden, who served as NSA Director from 1999 until 2005, has stated publicly that, had the terrorist surveillance program approved by President Bush after those attacks been in operation earlier, ““it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such.”
In 2002, FBI lawyer Colleen Rowley was named one of Time magazine’s “persons of the year” for her scathing memo to FBI Director Robert Mueller exposing incompetent senior FBI lawyers who had refused to even request a FISA warrant she had sought so the contents of Zacharias Moussaoui’s laptop computer could be examined and the 9/11 attacks perhaps prevented. In reality, Rowley was repeatedly told that a FISA warrant was not a lawful option because Congress had failed to anticipate the threat of a “lone wolf” terrorist like Moussaoui, who was not technically an “agent” of al Qaeda. In addition to blatantly usurping the President’s constitutional power, Congress had made it a felony for our intelligence professionals to engage in the kind of effective surveillance of foreign terrorists that might have prevented the 9/11 attacks.
Judge Mukasey was right to promise that he would resign rather than violate his oath of office if the “president proposed to undertake a course of conduct that was in violation of the Constitution” and could not be dissuaded. He was also right – and for precisely the same reason – to refuse to be bound by unconstitutional acts of Congress like FISA that usurp presidential power. Any Senator who elects to vote against Judge Mukasey because of this issue has a duty to explain to the American people by what theory an unconstitutional statute (which John Marshall told us is “void”) has suddenly taken on a superior position to the Constitution itself.
_____________________
This is an expanded version of an article that first appeared in the Wall Street Journal on October 24 under the heading “The Surveillance Law That Matters”(available online at: http://www.opinionjournal.com/editorial/feature.html?id=110010773). For Dr. Turner’s Sept. 5 statement to the House Judiciary Committee on this issue, see: http://www.virginia.edu/cnsl/pdf/Turner-HJC-5Sept07-(final).pdf .