In his ill-informed "rebuttal" to Senator Feingold's censure motion, Senator Specter falsely claimed that FISA conflicts with the President's Article II authority. It's an argument we've heard since the defenses of the program first began "evolving," but Specter's invocation of an patently false legal claim proves this horse isn't dead yet, so allow me to beat it one more time.
Ever since the scandal broke, the wailing banshees on the right have asserted that no one--not even a co-equal branch of government--can in any way interfere with the President's inherent authority to conduct warrantless wiretapping in a time of war. It is In re: Sealed Case that this administration has most frequently cited for the proposition that the President has an unrestrainable inherent power to conduct warrantless foreign intelligence surveillance, relying on the following passage:
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable."
First, it is important to note that the Truong language so often cited by the administration as the sole case law footing is actually dicta. Second, the language certainly does not give the President permission to violate and ignore FISA. That the President has an inherent authority to conduct foreign intelligence surveillance is without debate. But for this administration, "inherent" is equated with "absolute," transforming a vested authority into an impermeable power that cannot even be regulated by the Congress. Inherent authority for this administration means plenary authority. What Specter and anyone who has ever read the Constitution can plainly see is that it does not contemplate such plenary power.
Contrary to Specter's claims today, FISA does not "encroach" on the President's inherent power--it "clarifies" it, as evidenced by the signing statement of President Carter, when he signed the FISA on October 25th, 1978:
[T]the bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted. It clarifies the executive's authority to gather foreign intelligence by electronic surveillance in the United States. It will remove any doubt about the legality of those surveillances which are conducted to protect our country against espionage and international terrorism."
Moreover, this conclusion of FISA as a regulation rather than an encroachment on Presidential power is further bolstered by the House Report on FISA, in which Congress stated that "even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted." H.R. Rep. No. 95-1283, pt. 1, at 24 (1978). In order to support its agenda, the administration disregards that signing statement, the legislative record, and Supreme Court precedent when it claims that the inherent authority of the President is absolute.
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Specter's argument that FISA may be unconstitutional is legally untenable. In
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952), the Supreme Court held that Congress
could indeed define the counters of the President's inherent authority. As Justice Jackson noted in his concurrence, the Constitution "enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." In Youngstown, as you all know by now, the Supreme Court considered the constitutionality of President Truman's order to seize control of steel ceased production due to a labor dispute. Truman relied on his wartime powers as Commander-in-Chief in executing the order. The order was signed as a last resort after Congress rejected legislation that would have authorized the seizure. First, the court addressed the President's claim of inherent power:
It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that `The executive Power shall be vested in a President . . .'; that `he shall take Care that the Laws be faithfully executed'; and that he `shall be Commander in Chief of the Army and Navy of the United States.
The court went on to conclude that even if the President is asserting an inherent power, that does not preclude Congressional action. The Constitution explicitly grants Congress the power to make laws affecting all Constitutional powers, including those implied by the vesting of Executive power:
It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if [the claim to inherent authority] be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution `in the Government of the United States, or any Department or Officer thereof.
That express authority to regulate the vested powers is found in Article I, Section 8 of the Constitution which gives Congress the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Consequently, based on the Supreme Court's interpretation of that clause in the Steel Seizure case, it follows that Congress can legislate with respect to the President's inherent authority as Commander in Chief. And it did, when it enacted FISA.
Specter's arguments are nothing more than strained and baseless legal tripe meant to distract the public from the gravity of the President's crimes. The Constitution unequivocally gives Congress the right to regulate all powers "vested" in the Constitution, and that includes the inherent power claimed by President Bush. Congress chose not to abdicate its constitutional powers in 1978, and it cannot chose to do so now.