Yesterday,
Professor Cass Sunstein, a respected University of Chicago law professor,
wrote that:
The legal questions raised by President Bush's wiretapping seem to me complex, not simple.
Well it seems that the simple one is Sunstein, as he got rolled by Hugh Hewitt and declared it all so simple - the President is King. Pathetic. Thus he continues his process of completely embarrassing himself. Read this from his interview with Hewitt.
HH: So if we assume, and I do, that FISA is Constitutional, if it puts into place an arguably exclusive means of obtaining warrants for surveillance of al Qaeda and their agents in the United States, does the president's avoidance of that necessarily make him a law breaker? Or does it make the FISA ineffective insofar as it would attempt to restrict the president's power?
CS: Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.
Boy is that a horrible piece of legal thinking. Frankly, I think it is clear that Cass Sunstein is talking out of his ass on this subject. He doesn't know the facts and I think he doesn't know the cases.
Let's start with this statement from Sunstein:
One is that we should interpret FISA conformably with the president's Constitutional authority.
So it is Sunstein's view that the interpretation of FISA is to be dictated by the President's claim of Constitutional authority? Are you freaking kidding me? Do you have a case cite for that proposition Professor?
Then Sunstein says this:
So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance.
First FISA is NOT ambiguous, and you do not create ambiguity in order to defer to the President. Has Sunstein actually read the relevant FISA provisions? Apparently not.18 U.S.C. Section 2511:
Except as otherwise specifically provided in this chapter any person who--
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
This section states in unequivocal terms that unless the interception complies with the chapter, it is a crime. How to comply?
The criminal wiretap statute and FISA "shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." [18 U.S.C. § 2518(f)]
So FISA itself is NOT ambiguous and Sunstein wishing it were does not make it so.
Then Sunstein argues that it is reasonable to assume FISA allows the President to do what he did "given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance."
Again Sunstein seems a buffoon here. The issue was not that the President engaged in surveillance, it is that he did not follow FISA to do so!!!!! What in blazes is Sunstein talking about? I really think he doesn't know what the dispute is. It is pretty shocking. This is very embarassing in my opinion. I know I think a lot less of him, not because he disagrees but he seems so oblivious to the actual issues involved.
More on the other side.
Sunstein on Youngstown Steel is particularly embarrassing:
HH: And then I want to jump out of your analysis for a moment, and go to the steel seizure case, and to Justice Jackson's concurrance, because a lot of the analysis is saying the president is acting contrary to Congressional intent, citing some FISA sections, which I think are wrongly read. But nevertheless, if you read the AUMF the way you do, and the Constitution the way it is plausibly read, that would put us in the highest zone of presidential authority, under Justice Jackson's three-part analysis, wouldn't it?
CS: That's right. And just as in the Hamdi case, it's easy to remember the Court said that that was specific authorization to detain our enemies, so too a natural incident of war is the power to engage in surveillance of our enemies. So it would be odd, I think, to understand the authorization not to include the power to engage in surveillance, when al Qaeda is communicating with people who are unfriendly to us.
Boy Sunstein really does not know what he is talking about here. FISA does not prohibit warrantless surveillance. It establishes how to do them. Sunstein also misunderstands the importance of Hamdi - the Supreme Court said that Congress allowed detention of enemy combatants BUT THAT habeas corpus was still permitted and by the procedures designed by Congress!!! Oh by the way, he needs to reread Youngstown Steel.
Boy, Sunstein is completely out to lunch on this.
Here's the kicker:
HH: Do you consider the quality of the media coverage here to be good, bad, or in between?
CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is. As I recall, by the way, I was quoted in the Los Angeles Times, and they did say that in at least one person's view, the authorization to use military force probably was adequate here.
I tell you who is pretty rotten here -- Professor Cass Sunstein. He simply does not understand the facts and the law here. I suggest he go bone up because he clearly is unprepared to discuss the issues.