Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers, And Continues the Executive's Sapping of Power From Congress and the Courts

By EDWARD LAZARUS
Thursday, Dec. 22, 2005

Not so long ago, the debate over the constitutional doctrine of separation of powers in this country was a matter of fine distinctions.

In 1989, for instance, some worried that Congress' decision to have the executive put a few members of the judicial branch on the U.S. Sentencing Commission raised a separation of powers issue. These executive-appointed judges, after all, would arguably act as legislators - in that the Commission drafts the U.S. Sentencing Guidelines, for Congress' approval.

The Supreme Court, in Mistretta v. United States, approved the arrangement despite the separation-of-powers objection. But critics still worried. Yale Law Professor Stephen Carter eloquently explained why: Although permitting a few judicial officers to accept executive appointment to a non-judicial commission might not look too ominous, the Constitution's separation of powers was the nation's primary defense against tyranny. And tyranny, Carter concluded in an oft-quoted line, does not overwhelm a nation in an instant. No, he wrote, "tyranny creeps."

Lately, though, tyranny runs like a cheetah. How quaint concerns such as those of Mistretta's critics seem after the events of the last few years.

How quaint they seem, especially, after last's week revelation that President Bush has spent the last four years authorizing and re-authorizing the warrantless wiretapping of domestically originating phone calls made by American citizens, even though Congress appears to have made such wiretapping a criminal offense when it passed the Foreign Intelligence Surveillance Act (FISA) in the 1970s.

How a Bloated Executive Has Sapped Power From Congress and The Federal Courts

Over the past four years, the executive has repeatedly tried to make sure the federal courts and the legislative branch have no oversight at all as to whom it detains, on what ground, for how long, and under what conditions -- including conditions of extreme torture such as waterboarding.

The Bush Administration took power from the courts by spuriously arguing that Guantanamo detainees had no access to the Great Writ of habeas corpus - a contention that the Supreme Court handily rejected, but that kept the issue tied up in litigation for years. It would have been more honest for the Administration to suspend habeas corpus for these prisoners, and accept the brunt of public criticism for doing so.

The Bush Administration has also tried to moot cases before courts can rule on crucial issues of detention -- allowing the supposedly dangerous American citizen Yaser Hamdi to go live in Saudi Arabia, and indicting American citizen Jose Padilla on charges very different from the "dirty bomb" allegations that supposedly justified detaining him for years.

And the Bush Administration took power from Congress by acting as if the Congressionally-ratified Geneva Convention does not apply. Meanwhile, its CIA has reportedly administered a network of secret foreign prisons -- unbeknownst to the courts and, it seems, to Congress (or much of it).

Now, once again, the President has bypassed the federal courts and Congress entirely - with the Executive refusing even to avail itself of the separate, secret FISA court convened by Congress as the only entity with the power to authorize clandestine surveillance of espionage or terrorism suspects.

Importantly, the question now before the country is not some marginal blurring of lines between the three departments of government. The question is whether the Executive department will overwhelmingly dominate the other two - and, especially, the federal courts. President Bush claims Congressional leaders, at least, knew of his warrantless wiretapping, but no court was told.

The Bush Administration has taken the position that it has inherent constitutional authority to exempt itself from all legal constraint when the President invokes his commander-in-chief authority to respond to external national security threats. Surely, this position is wrong.

The Executive's Tactics: "Paper," Conceal, Trot Out the Paper

The Administration's M.O. in all such initiatives seems to be consistent. Within the Executive Branch, it uses the Department of Justice's Office of Legal Counsel - which used to serve as a neutral arbiter on questions of Executive power - as a veritable department of justification: a place where Executive Branch ideologues concoct defenses, no matter how one-sided or incomplete, for every act the President would like to undertake. It is from OLC, for instance, that the notorious torture memos came - and now, the justification for warrantless wiretaps.

In this way, the President can always claim that he was acting within his legal authority as the Justice Department itself defined it. But as the attorneys currently staffing OLC are not inclined to see any constitutional constraint on Presidential power at all, it is absurd to rely on their supposedly drawing the boundaries of the authority within which the President can operate.

In their view, there are no such boundaries. Yet they have produced lengthy analyses to "paper" this simple, incredible view, which might have been expressed in a single naked, unpersuasive sentence.

Next, the Administration shrouds its conduct in a thick veil of secrecy so that not only us ordinary folk, but even high-ranking Congressional officials will have no idea what power the President is actually exercising. And of course, the Administration has terrified potential whistleblowers through threats of investigation and prosecution. That means two more potential groups who might have argued for, or set, boundaries are silenced: Members of Congress, and the small group of those last few conscientious persons within the Administration who still believe it ought to comply with the Constitution, and are willing to say so.

Then, when the Administration's actions finally come to light, its officials trot out whatever legal justifications its lawyers have cooked up. In the past, these justifications have either been rejected by the courts (as when the Supreme Court emphatically rejected the Administration's view of its authority over enemy combatants) or exposed as astonishingly weak (as with the notorious "torture memos"). But OLC did, at least, give the Administration some paper to wave around, with lawyers' names on top.

These "legal" explanations are also invariably accompanied by an insistence that everything the Administration is doing is a necessary component of the amorphous war on terror, and that the American people can and should trust their President to do the right thing. But this argument simply can't justify the Executive's usurpation of power: After all, America has faced crises before without deciding to revert to monarchy.

The Wiretapping: Different Issue, Same Modus Operandi

This latest episode - of warrantless wiretapping - exhibits the same m.o. The Administration is not yet releasing its internal legal analysis for why the President could flout Congress's scheme for authorizing secret surveillance of terrorism suspects. But the contours of this analysis are becoming clearer.

As a first line of defense, the Administration is claiming that Congress, when it enacted its Authorization of the Use of Military Force (AUMF) in the immediate aftermath of 9/11, gave the President a free pass to end-run the FISA court.

This argument is risible. As a general matter, the law strongly disfavors such implied repeals of existing statutes: If a law is meant to decimate prior law, it ought to say that's what it's doing, and generally, it does. And especially when the prior law relates to constitutional rights - here, Fourth Amendment rights - its repeal ought to be crystal clear, so that repeal can immediately be challenged in court.

In addition, nothing in the debate over AUMF suggests that Congress had anything like the NSA surveillance program in mind when it gave Bush the go-ahead to attack Al Qaeda in Afghanistan. After all, that decision was a no-brainer, at the time. What Congressperson was gaming out what would happen years ahead? And again, where in the silence is authorization found?

By this logic, the Administration could invoke the AUMF to override pretty much any federal statute. And that's surely wrong.

Moreover, on a more specific level, Congress purposefully limited the AUMF to the use of force against persons directly connected to Al Qaeda. From what has emerged, the Administration's secret wiretapping program appears to cover a multitude of persons who would not qualify as targets under the AUMF - and, thus, the AUMF rationale falls of its own weight.

The President's real argument, however, is not based on the AUMF, but - once again -- on what he claims is his inherent constitutional powers as commander-in-chief. Here, the President's claim seems breathtaking in scope. He appears to be claiming that the President may disregard every law as he - in his own discretion - deems necessary, to fight a war on terror that has no clearly defined scope, nor any clearly defined foe, nor any knowable end point.

Furthermore, under this theory, it would appear that Congress has no power to curb the President's authority -- because the President alone has the power to define the terrorist threat and the means necessary to combat it.

This is not a constitutional design I recognize. Wasn't one of the Framers' primary concerns to avoid the concentration of such power in a king-like chief executive? Didn't the Framers believe that such a concentration of power was deeply corrupting? And hasn't history only reinforced those lessons?

Revision of the Law May Be Necessary, but Ignoring and Circumventing It Was Not

This issue, it's important to note, is not a political one, and should not be divisive. It may be that this country needs to revise its laws to respond effectively to terrorist threats - and that is the policy issue on which right and left will predictably differ, just as they have on the USA Patriot Act.

But what we all should be able to agree on, is that the Executive's simply opting to act illegally -- without even asking its own same-party Congress to change the law - is wrong.

Perhaps FISA needs to be revamped. Notably, it already contains exceptions for emergencies and the FISA court has a long history of working cooperatively with the intelligence agencies, But some say that the kind of "data mining" the government absolutely must do won't pass muster under current FISA court standards, and that therefore, FISA must be amended.

I don't know whether these claims are true; I'm willing to hear arguments on both sides. It's the missing debate on this, that is the national shame here.

Unilateral Executive Power Is Tyranny, Plain and Simple

I might even accept, for the purposes of argument, that, in the panicky aftermath of 9/11, it was understandable for the President to act unilaterally to protect against a potential second-wave attack, regardless of constitutional limits.

But over four years have passed, and there has been copious time for deliberation and, if necessary, Congressional action. In this context, it simply cannot be that the President, acting alone, has the permanent authority he now claims to override a carefully-wrought congressional scheme for fighting terrorism, and enact his own set of secret rules.

Naturally, such a scheme implicates civil liberties, as enshrined in our Constitution. It is not the President's job, alone, to make the nation's trade-offs between security and privacy. Congress ought to legislate, and if it goes too far, the Supreme Court ought to make sure its legislation stays within constitutional bounds.

But even worse, such a scheme threatens basic democratic principles. This Administration wants virtually unlimited power with essentially no accountability. I might almost be able to stomach Bush's "just trust me" claims of Executive power, if the President could be made truly accountable for his decisions down the road. But Bush wants the power with no public debate and a minimum of public disclosure.

I wouldn't trust any Administration with such a blank check. And this isn't just any Administration. It's an Administration with a deeply troubling history of mistakes and obfuscation, an Administration that seems to expand its definition of terrorism however it finds convenient, an Administration that brooks none of the internal dissent that might check authoritarian impulses.

Against that backdrop, the new revelations of warrantless wiretapping, and the Administration's latest set of explanations, sound less like a plan to fight terror than like tyranny's engines, raring to go.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.