WW II (Warrantless Wiretaps II)

What follows is an exchange I had with a coworker over a series of emails related to the President’s authorization for warrantless wiretaps of international calls involving persons with connections to terrorism. My coworker and I had had a heated discussion several days before in which he asserted that the President had violated the law. I told him that I was pretty sure his actions were legal (and politically popular to boot). He stormed off before I could explain why. I think he was mostly stung because he did not like someone threatening to puncture the bubble of hopefulness he was nurturing that the President would be impeached. I just had to hear the bubble pop. I think you can hear it towards the end of the email string. Also, note the startling ignorance revealed in his responses (this from a person with a subscription to the Economist and the New Yorker). Enjoy...

Me: Attached is a Justice Department brief to the highest ranking members of the Senate and House intelligence committees explaining the President’s authority to perform warrant-less wiretaps for National Security.

Also, here is a link to an analysis of the law in question by an attorney.

What is most remarkable about all of this is that of all of the cases out there on this subject, none (use of that word very rarely occurs in interpretation of the law) even come close to establishing that the President was acting unconstitutionally or illegally. More still, those that are most recent (including a very recent Federal Appellate Court case by the FISA court itself) clearly provide that the President has exactly the rights he said he did.

It is remarkable that there prominent attorneys publicly opining otherwise. It think a large part of the explanation of this is that very few people (and very few attorneys) have ever dealt with law involving national security and they instead analyze the law according to their understanding of domestic criminal law. I would agree with them wholeheartedly that if the President did what he did in order to investigate domestic criminal activity he would be in deep trouble. That is not what this is all about, though.

The President has (at least) two hats he wears: the Chief Executive hat, and the Commander-in-Chief hat. When he is wearing his Chief Executive hat he shares many of his powers with Congress (and is often subservient to that branch of government). He has to execute and follow the laws that they pass. However, when he is wearing the Commander-in-Chief hat he is not subservient. Indeed, as his actions come closer and closer to how to prosecute a war he has superior powers to the Congress. In that context, they cannot pass laws that dictate his actions.

Congress cannot dictate how the President obtains intelligence on the enemy’s plans in a war. And if you doubt that there is a war – look no further than Congresses act authorizing the President to use “all available means” to combat AQ and its terrorist affiliates. Intelligence gathering is more central to this war than any other war in our history.

As an interesting side note – some claim that his actions violate the fourth amendment (the JD argument and the linked argument destroy that position). Even if that was the case (which it is not), the futility of the argument is made clear by the remedy. The only remedy for a violation of a person’s fourth amendment rights is that the information obtained cannot be used in to prosecute that person. It is extremely doubtful that the government would ever use the information that is being obtained in these wiretaps in Court – so the remedy is meaningless anyway.

One reason some of the high profile attorneys feel more comfortable claiming the President is acting illegally or unconstitutionally is that the Supreme Court has never addressed this issue head on. I think that those attorneys are expressing how they think (or hope) the Supreme Court would rule. The problem with that position is that the Supreme Court tends to follow the lower courts when there is not a dispute between the lower courts (one of the ways they do this is by refusing to take the case) and they tend to be deferential to past practice. There is not a dispute here between lower court opinions. Past practice also supports the legality and constitutionality of the President’s actions (Carter, Reagan, Clinton - all authorized warrant-less searches for National security purposes).

Him: So are they arguing that this is a war? Was that made official?


Me: Congress passed a law after 9/11 authorizing the President to wage war on A-Q and its affiliates. Yes, we are at war.

Him: I thought they only approved all necessary means. That a declaration of war was never made. I must be mistaken.


Me: Here is the authorization

The authorization

President signs the authorization


Me: An authorization for use of Force has the same effect as declaration of war – the Congress is telling him to put on his Commander-in-Chief hat.

For whatever reason – since World War II Congress has issued “Authorizations to use Force” rather than “Declarations of War”. I think they think it sounds less scary. Also, since WWII is has not been PC to declare war because it implies you are going after a country - rather than just a government – which is what were usually after in a war.

Him: So he can do as he pleases so long as this pseudo war is open ended? Come on….

Me: No.

First, it is not a Pseudo-war, unless you are repudiating all of the votes of all of the members of the Congress (including the overwhelming numbers of Democrats who voted for it).

Second, Congress can remove funding for the agency performing the eavesdropping.

They could revoke their authorization (although the President has inherent national defense powers even without the authorization - remember Clinton, Carter and Reagan’s authorizations for wiretaps were not shut down even though there was no war on – so he could still probably do it). The authorization just makes all that much more likely that the courts will not second guess his actions.

Congress can impeach the President in the event he does go too far

Finally, you can elect someone else into the government when the President’s term ends.

You should really be more concerned in this case that a number of Congressmen have so little regard for and knowledge about the separation of powers – the idea that no branch of government can usurp the powers of another (in this case Congress [attempting to] usurp Presidential powers).

Him: I’m more concerned with abuses. The funding argument is bunk. Nobody would defund the NSA (too many cool movies predicated on their power). It’s all about controls. There’s a means by which the wire taps can be had and they’re bypassing that. Why?

Bottom line, I don’t care if it’s Carter’s grandmother trying to do good, it’s abuse, in my mind. Where does it end? Torture? Rape? Murder? You need controls, especially when you’re living in a flat world and trying to win over the minds of young, potentially radical Islamic boys and girls. After the prison fiascos, we need to be more transparent, or, at the very least, presenting a the appearance of a government run with the necessary checks and balances to prevent abuse.

I’m a realist. I know shit will happen and in many cases needs to. They can always petition the special court up to 3 days after it happens. That ain’t going to be denied unless it was a bogus tap.

Have a lovely and safe Christmas.

Me: Have a lovely and safe Christmas as well.

Thanks to the President it is more likely to be lovely and safe (Sorry, I couldn’t help it).