Jeffrey H. Smith, former General Counsel at CIA and the Senate Armed Services Committee, has recently sent a
14-page memo to the House Permanent Select Committee on Intelligence. In it, Smith lays out the extreme shakiness the administration's legal reasoning regarding the President's warrantless surveillance program. (More on that in extended.)
Smith's legal experience dates back to the early seventies, when Smith was an Army Judge Advocate General officer. Smith then moved on become Assistant Legal Adviser at the State Department. He served in that position until 1984, when he moved on to Senate Armed Services Commitee, first as Minority Counsel and then as General Counsel. He later served as General Counsel at the CIA from 1995 to 1996. He's now a partner at Arnold & Porter, specializing in Congressional Oversight (among other areas). Smith will be speaking at a hearing next Friday, the 20th, held by Reps. John Conyers (D-MI), Bobby Scott (D-VA) and Chris Van Hollen (D-MD) on Bush's warrantless surveillance program. (RawStory has more.)
Those attending Conyers' hearing include: former Reagan Associate Deputy Attorney General Bruce Fein, George Washington Law School Professor Jonathon Turley, former CIA General Counsel Jeff Smith and Caroline Frederickson from the American Civil Liberties Union.
Granted, Smith didn't work under the Bush administration but he does have 30+ years of legal experience. While he limits his comments simply to the press reports you and I have read, his views are very clear in that what is known about this program is legally very troubling.
Smith stresses the well-established process of the FISA courts:
On the statutory argument, it is not credible that the 2001 authorization to use force provides authority for the President to ignore the requirements of FISA. It is very doubtful that the courts would sustain the President on this basis.
On the constitutional point, the President can make a case, although it is weak, that he does have constitutional authority to conduct warrantless wiretaps of American citizens in the US for national security purposes. Because the Supreme Court has never said he does not have this power, some regard it as an open question. However, passage of FISA seriously undermines this argument.
But, we're at war. Right? Well, no, not technically. And even still, FISA has explicit limits on Presidential desires to bypass FISA during wartime:
FISA provides specific exceptions allowing the President to authorize warrantless surveillance in emergencies, and for fifteen days following a declaration of war by Congress, but otherwise, FISA applies within the United States and states: "Notwithstanding any other law, the President...may authorize electronic surveillance without a court order...[if] there is no substantial liklihood that the surveillance will acquire the...communications to which a United States person is a party."
But, of course, US citizens are involved.
Smith also takes Gonzales's reasoning to the woodshed:
Gonzales's argument strongly suggests that the President is not bound by any statute, as long as he deems his action to be "necessary and appropriate" in attacking Al Aqaida. They also argue that the ability to collect intelligence, including from American citizens, is a "fundamental incident of war" and thus is inherent in Congress' grant of authority to the President.
However, in Hamdi, the Supreme Court did not agree with this expansive view of Presidential powers. Justice O'Connor wrote: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."
Smith sums up:
[W]ithout express statutory authority, and particularly when acting in contravention of existing statutory law, the President's residual constitutional authority is at its lowest level. Although the President has some support for his view, it is not widely endorsed. Moreover, should the President's view be sustained it would be a dramatic expansion of Presidential authority affecting the rights of our fellow citizens that undermines the checks and balances of our system, which lie at the very heart of the constitution.