More On The NSA Hearing
Glenn Greenwald and the Anonymous Liberal do their best to keep up the facade that the FISA judges who testified before Arlen Specter think the president’s surveillance is illegal, but the facts appear to be against them (and the NY Times). They do get one thing right:
Although the judges were careful not to opine about the NSA program specifically, it was clear from their testimony that they believe further Congressional authorization is necessary and desirable and that the judiciary has an important and indispensable role to play in overseeing domestic surveillance.
Their agenda, to the extent they had one, was to lobby for the continued relevance of the FISA court. If the DeWine bill passes, the FISA court will be utterly marginalized. These judges realize that some sort of legislation is likely to be passed, and they’d undoubtedly prefer something along the lines of Specter’s bill, which would at least require the court to approve surveillance on a program-wide level.
Agreed, in totality…but it’s a long way from that to this:
Intellectually bankrupt Bush apologists have long been propagating the myth that once it’s established that the President would have a certain power in the absence of a Congressional statute (such as the power to engage in warrantless eavesdropping for foreign intelligence purposes), then it necessarily means that the power can never be limited by Congress. But our entire system of government — and the entire point of Youngstown — is that a President may have the right to act in a certain area in the absence of a Congressional statute, but once Congress regulates in that area, then the President can’t exercise that power in a way that violates the law.
Anyone who says: “the President has the right to do X under the Constitution and therefore Congress can never regulate it” just has no idea how our system of Government works.
Am I the only one who is finding Greenwald’s habit of calling Bush supporters dishonest and intellectually inferior to be increasingly tiresome? Nevertheless, it’s a very Kos-like trick to put up straw men and knock them down.
What the argument actually is, of course, is that the President is not obligated to follow laws that circumvent his ability to execute his powers as stated in the Constitution, one such power being plenary authority in foreign affairs, as discussed at length in this 24-page letter by H. Bryan Cunningham, a former legal advisor to the National Security Council who served under both Clinton and Bush. Using Glenn’s own words, his belief must be “based on several transparent myths that one can believe only if one has a complete lack of understanding as to how our system of government works” (because, you see, he disagrees with Glenn).
To adopt the Greenwald position is to completely throw the system of checks and balances out the window, and make Congress clearly superior to the Executive branch, as it would be free to simply legislate away Presidential powers, regardless of constitutionality.
Intellectually bankrupt Bush apologists have long been propagating the myth
Yes, anyone who has to start like this is pretty much capitulating any real strength in argument.
Anyone who says: “the President has the right to do X under the Constitution and therefore Congress can never regulate it” just has no idea how our system of Government works.
This is such a transparent opportunistic BDS stance.
1) The Constitution specifically provides for Congress to regulate the military (Article I Section VII: Congress shall have the right “to make Rules for the Government and Regulation of the land and naval Forces.”) Any strict constructionist could tell you that a law passed by Congress regarding military surveillance would be binding on the executive branch. Hence “anyone who says: “’he President has the right to do X under the Constitution and therefore Congress can never regulate it’ ” is wrong if X is one of the powers specifically granted to Congress.
2) It may be “a very Kos-like trick to put up straw men and knock them down,” but it is also something which Bush and Rove do constantly (e.g., Rove’s speech that “some Democrats oppose wiretapping Al Qaeda” – without specifying anyone in particular, as of course no leading Democrats have suggested that).
3) The money quote from the FISA judges, as far as I am concerned, was the judge who said that if Congress passes a law, the President is obligated to follow it “just like everybody else,” and if he fails to do so, it is at his own peril.
sorry, that was Article I, Section 8, not Section 7
“Anyone who says: “the President has the right to do X under the Constitution and therefore Congress can never regulate it” just has no idea how our system of Government works.”
Ah, yes – and our supposed betters will of course explain it all for the benighted and misguided souls among us.
Looked to me like Dickie D. was trying to get the judges to come out strongly on his side here – and failing that, asked quite a few leading questions.
To adopt the Greenwald position is to completely throw the system of checks and balances out the window, and make Congress clearly superior to the Executive branch, as it would be free to simply legislate away Presidential powers, regardless of constitutionality.
Mark, respectfully, this statement just isn’t accurate. It may be helpful to think of Congressional and Presidential powers as two overlapping circles (a Venn diagram if you will). Think of one of these circles as being Congressional inherent authority and one as Presidential inherent authority. There are some powers that are exclusively Congress’s and some that are exclusively the President’s. These inherent powers are in the non-overlapping part of the circles. For instance, the president’s pardon power is exclusive. It is not within Congress’s sphere and no law passsed by Congress can alter it. The Constitution clearly gives that power to the president alone; it is plenary. But the President’s exclusive powers are only a small subset of his inherent powers. Most of the president’s inherent powers fall within the overlapping part of the diagram. These inherent powers are just default powers that the president can utilize in the absence of legislation. But when Congress legislates in this area, a duly enacted statute trumps the president’s default authority. This is an undisputed fundamental tenet of constitutional law. And it happens all the time. Nearly every statute passed by Congress trumps some inherent authority of the president’s.
The question is whether setting the rules for surveillance of U.S. persons within the U.S. falls into the overlapping part of the diagram, where the president’s powers are merely default, or the exclusive part of the diagram where the president’s powers are plenary. Both Glenn and I contend that the answer to this question is quite clearly the former. The text of the constitution quite clearly provides Congress with concurrent power in this area, and there are zero cases which suggest otherwise. Indeed, if Congress lacks the power to legislate in this area, that countless other statutes are unconstitutional.
Long story short, no one questions that there are some executive powers that belong exclusively to the president and cannot be trumped by legislation. We just question whether FISA comes anywhere near impinging on any such power.
Also, for the record, the point of my post was not to claim that the FISA judges think the NSA program is illegal (though I suspect they do), but rather to point out that they bent over backwards at the hearing not to opine one way or the other on this specific program. They’re judges and judges hate opining on issues that aren’t before them. So they limited their discussion to general principles that no one really questions. My post was prompted by the Moonie Times article which claimed the judges had somehow testified that what Bush is doing is “within the law.” That’s totally inaccurate. They said nothing even close to that. And indeed most of what they said about the president’s power currently being at its “lowest ebb” and the need for judicial review entirely contradicts the arguments expressed in the DOJ white paper. If you haven’t already, I encourage you to read the transcript or watch the video of the hearing to get the full context of the testimony. I think you’ll find that what Hindrocket and others are saying is way off.
Anonymous, thanks for the respectful replies, I always appreciate it and try to reciprocate it.
It’s true that you pointed out that the FISA judges made a point of not speaking to the legality of the program; in fact, as you know, and I should have made explicit in my post (though time constraints forced me to shorten what was supposed to be a longer post to begin with), at least one and probably more judges said that that would be impossible without being briefed on the program.
Frankly, and with respect to Glenn, who has been kind enough to come by and debate us from time to time, I found your part of the post more reasonable. I completely agree that the judges were there to influence the legislative process towards the Specter legislation under the half a loaf theory, since the Dewine legislation would be no bread at all.
My point in my post was not really to say I agree with Cunninham’s position and those like him; I just feel that Glenn mischaracterized their position, and I wanted to make the point that there are people out there – smart people, who have spent their life in government legal positions – who feel that the President DOES have the authority to spy on suspected foreign agents, regardless of any legislation passed by Congress, under the theory that Cunningham outlines (and I hope you’ll forgive me for being light on the details, as his letter is quite lengthy, but I did provide the link in the post).
My own position, and I wouldn’t expect you to know it, since I didn’t reiterate it here, is that I’m undecided on the legality of the president’s surveillance, and I expect both legislative and judicial action will come to define its propriety in time (which is, I suppose, a tacit admission that I don’t find Cunningham’s case totally persuasive – though, in fairness, neither do I find the position of Glenn and yourself totally convincing).
peter, in answer to your choice of money quotes, may I suggest this one, from Judge Stafford: “Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President’s power under the Necessary and Proper Clause under the Constitution.”
This issue appears to come down to the same old problem. Depending on which side of the political spectrum you are on determines what your opinion on the legality of the program. The lawyers at Powerline are very convinced that Mr. Bush is well within his constitutional authority and Peter and Anonymous Liberal feel differently. Not being a lawyer, I suggest you get together and argue back and forth. I doubt I have the background to argue very convincingly either way.
The bigger question is who is right and who is wrong? Or is nobody right and nobody wrong? I guess it depends on your political affiliation and how you wish to interpret the law and Constitution. As a good loyal Republican, I give Mr. Bush the benefit of the doubt.
From Anonymous’ reference to John Hinderaker as Hindrocket, I am assuming that there is a minimum of respectability for his legal opinions?
Oh, Anonymous Liberal, if you happen to come back by, you mentioned that I should read the transcript – I’d love to, if a free one ever becomes available…should you run across one, let us know, would you?…
Mark, this post really disappoints me. You know I have disagreed w/ Glenn on relatively trivial issues like “defending the honor” of Michael Moore.
But he and Anon Liberal are both right in this FISA/NSA matter, and the WashTimes article, quite simply, is a lie. I watched those judges testify, and they did not address the legality of the warrantless surveillance program — and that issue isn’t why they were there.
Look, it is hard to say what I want to without sounding elitist, but it just is true that non-lawyers are not well-positioned to know what those judges were (and were not) saying. John Hinderaker is a shameless shill for Bush, and you cannot trust anything he says about the law when it comes to any issue that could be dangerous for the President.
Mark I have stopped taking Glenn seriously on this issue. He has no desire to have an honest debate and on the one opportunity that I witnessed, he was beaten badly by Professor Robert Turner. Professor Turner is one of those constitutional scholars who argues the president does indeed have inherent authority in this area and that congress can not legislate it away.
When I asked Glenn why he failed to cite any case law or address any point made by Professor Turner he claimed he was playing to an audience of laymen. Unfortunately for him he was debating an expert.
I like Glenn but he refuses to fight fair on this one. I don’t know the anonymous liberal (does anyone really hehe) but I have to wonder if his position is so strong why does he have to mischaracterize the argument like he did here:
The question is whether setting the rules for surveillance of U.S. persons within the U.S. falls into the overlapping part of the diagram
Which if he is as familiar with this case as he purports to be, he knows is inaccurate. The program is actually designed to monitor anyone in the United States communicating with known or suspected terrorists outside the United States.
The fact is scholars are divided on the issue but the court precedent is on the presidents side. This issue has been intentionally left unsolved since FISA was created and every president to hold office (including Carter who signed it into law) since the creation of FISA has denied its authority.
For anyone to argue otherwise is simply untrue.
[...] Many of you know I have posted quite a bit on the NSA Story. Decision08 Takes Glenn Greenwald and The Anonymous Liberal to task for their latest screed. Mark asks the question: Am I the only one who is finding Greenwald’s habit of calling Bush supporters dishonest and intellectually inferior to be increasingly tiresome? Nevertheless, it’s a very Kos-like trick to put up straw men and knock them down [...]
Mona, Hinderaker is an attorney – so I’m not sure how that fits with the non-lawyer theory. I’ll gladly peruse a transcript if anyone makes one available…
Also, I’ll refer you to comment 7, where I agreed with the premise that the FISA lawyers didn’t address the legality of the program, and also agreed with Anonymous Liberal as to their agenda.
Ugly, as always, thanks for the enlightening comments – you are correct that is false to make this an issue about surveillance on Americans and just leave it without the ever-so-important context that they are suspected of communications with terrorists.
Mona, one more thought – if the argument of the judges was so incomprehensible to the non-lawyer, I guess I can safely discount the New York Times account…
peter, in answer to your choice of money quotes, may I suggest this one, from Judge Stafford: “Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President’s power under the Necessary and Proper Clause under the Constitution.”
This is a bizarre quote actually. The Necessary and Proper Clause is in Article I of the Constitution and it appiles to Congress, not the President. So I’m not sure what he’s even talking about. But, as I said before, everyone agrees that some of the President’s inherent powers under the constitution are exclusive powers that not even a statute can limit. The pardon power is a good example. The crux of the controversy is whether the power to conduct warrantless surveillance for foriegn intelligence purposes (assuming it exists; the SCOTUS has never addressed the issue) is a default authority or an exclusive one. Given that Congress is specifically granted the authority under the constitution to–among other things–make rules governing the military, it’s a safe bet that the president does not have exclusive authority when it comes to setting rules for surveillance of U.S. citizens. Therefore FISA is constitutional; therefore the NSA program is illegal.
Which if he is as familiar with this case as he purports to be, he knows is inaccurate. The program is actually designed to monitor anyone in the United States communicating with known or suspected terrorists outside the United States.
A few points. First, FISA is only implicated if a U.S. person in the U.S. is targetted. This person may be talking to someone overseas, but it doesn’t change the fact that a U.S. person within the U.S. is being targetted for surveillance. Second, your observation assumes away the entire reason we have judicial oversight in the first place. Without judicial oversight, there is no way to prevent or even detect abuse. We have to simply take the president’s word that he is in fact spying only on suspected terrorists. The whole point of FISA is to ensure that the surveillance power is used on the right people, that someone independent is overseeing the process. When the president is allowed to surveil American with no judicial oversight, it is an invitation for abuse.
Well, here’s where we can find a little common ground…kind of. I’m still open as to whether I prefer Specter’s legislation or Dewine’s, for some of the same reasons you outline. I trust Bush, you don’t…but I might not trust the next guy, and you might.
I part company with you and Glenn on many items related to this, but I prefer that the administration work with the Congress to find an explicit legislative authorization of current activities, and if that means modifying FISA, I’m open to discussion.
Nixon’s Ghost Haunts Censure Hearing (Video)
Today, the Judiciary Committee held a hearing on Sen. Russ Feingold’s resolution to Censure President Bush and, at moments, tensions were running very high. Appearing before the Committee as witnesses were Robert F. Turner, Bruce Fein, Lee Casey, John…
btw I agree with Mark on this point, and I think some sort of oversight needs to happen. I just find Anon liberals explanation of the case law, and the matter at hand intentionally or sloppily dishonest.
Again legal precedent is on the presidents side. As anon liberal has admitted the Supreme court has not ruled on the presidents inherent authority in this matter but several courts have including the one and only convening of the FISA court of review.
I am sure he knows the ruling well yet fails to ever mention or acknowledge it. That is a sure sign of a biased and poor argument.
What should have happened is the president and the congressional leaders should have worked out some form of oversight in secret. Every congressional leader who has been briefed on the program has said they think it is valuable and necessary.