Today in the Washington Post, neocons Bill Kristol and Gary Schmitt double down on this nefarious theory:
This is presumably one reason why President Bush decided that national security required that he not simply follow the strictures of the 1978 foreign intelligence act, and, indeed, it reveals why the issue of executive power and the law in our constitutional order is more complicated than the current debate would suggest. It is not easy to answer the question whether the president, acting in this gray area, is "breaking the law." It is not easy because the Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional.
Following that logic, the Supreme Court has never ruled that the president does not ultimately have the authority to collect foreign intelligence -- here and abroad -- as he sees fit. Even as federal courts have sought to balance Fourth Amendment rights with security imperatives, they have upheld a president's "inherent authority" under the Constitution to acquire necessary intelligence for national security purposes. (Using such information for criminal investigations is different, since a citizen's life and liberty are potentially at stake.) So Bush seems to have behaved as one would expect and want a president to behave. A key reason the Articles of Confederation were dumped in favor of the Constitution in 1787 was because the new Constitution -- our Constitution -- created a unitary chief executive. That chief executive could, in times of war or emergency, act with the decisiveness, dispatch and, yes, secrecy, needed to protect the country and its citizens.
To be succinct, this is simply a lie. As I explained in my previous posts:
A Supreme Court opinion cited by Yoo/Bybee to support their assertions of plenary Presidential power is The Prize Cases, decided in 1863. To Yoo/Bybee, the Prize Cases stand for the proposition that the President has unfettered power to act to defend the security of the Nation. But what did the Prize Cases actually say? The Prize Cases involved the seizure of certain vessels who tried to defy the blockade of the South declared by President Lincoln prior to the formal declarations by Congress of an insurrection. Subsequently, four months later, Congress did make such declaration. So does this buttress Yoo/Bybee's point? Let's see:
By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But, by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States.
If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader or States organized in rebellion, it is nonetheless a war although the declaration of it be "unilateral." . . . This greatest of civil wars was not gradually developed by [p669] popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.
. . . Whether the President, in fulfilling his duties as Commander-in-chief in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. "He must determine what degree of force the crisis demands."
. . . If it were necessary to the technical existence of a war that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress "ex majore cautela" and in anticipation of such astute objections, passing an act approving, legalizing, and making valid all the acts, proclamations, and orders of the President, &c., as if they had been issued and done under the previous express authority and direction of the Congress of the United States. [p671]
If this is support for the Yoo/Bybee view, I don't see it. Lincoln took up arms, via blockade, against the insurrection, formal and declared, of the Southern states. What that has to do with the matters at hand is not clear at all to me. Moreover, Congressional acts are cited as authority for the President's actions. Surely this does not argue for unfettered Presidential Commander in Chief power. In essence, the Prize Cases, the Apollon case and others cited by Yoo/Bybee relate to the President's ability to act in defense of the country when the country is attacked. Think Pearl Harbor. The question of waiting days or weeks for Congressional action to act in defense of the Nation is what those cases were about. If Bush were to have acted to stop the 9/11 attacks without Congressional authorization then the analogy would hold. But unless Bush is acting in ways to stop specific attacks that are imminent and by known parties now, then these analogies do not hold. What Yoo/Bybee argue for is that the President can turn the country into a police state by invoking Commander in Chief powers. And this is simply ludicrous.
What this means is that in times of EMERGENCY in which the President must respond to immediate and imminent attack or dangers, then, arguably, he has the power to act to defend the country. But a program of continual surveillance, for a period of years is NOT such a situation. It is not even arguably such an occasion. It is an absurdity, indeed, a lie, of immense proportions to even posit such a thing.
Indeed, this is the poorest of examples that those who argue for such inherent authority could possibly find for this. Why? Because Congress has already enacted laws regarding the types of issues this surveillance program raises. Since 1978, there has been a law on the books, followed by every President in every circumstance - the FISA law. Congress has SPOKEN on the issue. What the President has done is deliberately violate the law, and no exigent circumstances justify it. None. This is a PROGRAM, not an isolated instance. It is simply untenable.
The Bush Administration and the defenders of his illegal acts are instead arguing for an unfettered President as Commander in Chief. An absolute monarch as President. It is unprecedented in the annals of our history.
Have other Presidents argued for this power? Yes. And the Supreme Court has rejected this view. I'll discuss the case that did so on the flip.
The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property. In response to the defendants' pretrial motion for disclosure of electronic surveillance information, the Government filed an affidavit of the Attorney General stating that he had approved the wiretaps for the purpose of "gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government." On the basis of the affidavit and surveillance logs (filed in a sealed exhibit), the Government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The District Court, holding the surveillances violative of the Fourth Amendment, issued an order for disclosure of the overheard conversations, which the Court of Appeals upheld. Title III of the Omnibus Crime Control and Safe Streets Act, which authorizes court-approved electronic surveillance for specified crimes, contains a provision in 18 U.S.C. 2511 (3) that nothing in that law limits the President's constitutional power to protect against the overthrow of the Government or against "any other clear and present danger to the structure or existence of the Government." The Government relies on 2511 (3) in support of its contention that "in excepting national security surveillances from the Act's warrant requirement, Congress recognized the President's authority to conduct such surveillances without prior judicial approval."
There's the theory. Now here's the answer:
But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.
. . . We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.
Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long involved imparting sensitive information to judicial officers who have respected the confidentialities involved. Judges may be counted upon to be especially conscious of security requirements in national security cases. Title III of the Omnibus Crime Control and Safe Streets Act already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage, and treason, 2516 (1) (a) and (c), each of which may involve domestic as well as foreign security threats. Moreover, a warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge. Whatever security dangers clerical and secretarial personnel may pose can be minimized by proper administrative measures, possibly to the point of allowing the Government itself to provide the necessary clerical assistance.
Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.
What is most important here is that, unlike the idea forwarded by Yoo and Kristol and company, it is clear that the Supreme Court believed that the Fourth Amendment DOES APPLY to the President acting as Commander in Chief.
With that determination alone we can say with doubt that the notion of an unfettered plenary power of the President acting as Commander in Chief is sheer dangerous fantasy, forwarded by the most dangerous group of men and women to govern in this country since the Nixon Administration.