NSA Spying and Bush's Supreme Court Nominees

A while back--before the New York Times revealed that President Bush had authorized warrantless NSA spying on American citizens--Slate's Dahlia Lithwick wrote the following:

Pretend, for a minute, that I am not completely
paranoid and that there is truth behind my
sense that we are all missing the real story of
the new Supreme Court nominations. My fear
is that we are all snoozing through an elaborate
plan to pack the court for the Bush
administration's war on terror. . . .

I have written before that the arc of his Supreme
Court nominations can best be explained by his
desire to pack the courts for all of the Hamdan,
Hamdi, and Padilla cases to be heard by the
courts for years to come. Think about it: Roberts,
Miers, and Alito each have a long track record of
endorsing executive power. Each seems highly
likely to strongly support the president's claims
to virtually limitless executive authority in
wartime. The Bush administration saw that claim
repudiated by a margin of 8-1 in Hamdi. And the
president won't let that happen again.

Lithwick based her theory on the expansive interpretations of executive power that the Bush administration had staked out in the areas of enemy detentions, torture, and foreign policy. She warned:

I think we will, all of us, be very sorry. Not just
the edgy civil libertarians or the ACLU types,
and not just Jose Padilla, or his attorneys, but
everyone who believes there is a place for the
rule of law even in the midst of a war, especially
when that war threatens to go on forever.

I'm sure even Lithwick was shocked by how quickly she was proven right. Less than two weeks after she wrote this article, the New York Times revealed just how far the Bush administration was willing to go; Bush, by way of a secret executive order, had authorized the NSA to ignore the clear prohibitions of FISA and conduct warrantless electronic surveillance of U.S. citizens. We have since learned that the 'legality' of this order rests on what can only be described as a controversial and maximalist interpretation of executive power, one similar but far more ambitious than the ones used to justify "enhanced interrogation techniques" and the use of military tribunals. The Bush administration is arguing that the 2001 Authorization for Use of Military Force (AUMF)--in which Congress instructed the president to use "all necessary and appropriate force" to combat Al Qaeda--implicitly authorized the executive branch to conduct warrantless wiretaps of U.S. citizens, that such surveillance was a normal "incident to the conduct of war."

The case which comes the closest to supporting this argument is Hamdan v. Rumsfeld, in which the D.C. Circuit Court of Appeals held that the AUMF, in conjunction with two other statutes, implicitly authorized the president to establish military tribunals to try enemy combatants. The court held that such a power was an "important incident to the conduct of war." The three-judge panel in Hamdan seemed to go out of its way to decide all issues in favor of the government, even ones that weren't necessary to the disposition of the case. Why is this important? Well, as coincidence would have it:

Bush conducted the final face-to-face interview
[of John Roberts] on July 15 -- the same day
Roberts and two other judges on the U.S. Court
of Appeals for the District of Columbia Circuit
issued the ruling in the case, Hamdan v. Rumsfeld.

You don't have to be paranoid to suspect that Roberts' opinion in Hamdan is what sealed the deal. At the time, a number of the Bush administration's legal opinions relating to the war on terror had already come under fire. Courts, commentators, and legal scholars were beginning to push back. The 'anything goes' atmosphere that followed 9/11 had dissipated and the importance of the rule of law was being reasserted. And the president was sitting on the knowledge that the most controversial of his decisions--his order authorizing the widespread warrantless surveillance of U.S. citizens--could at any moment be splashed across the front page of the New York Times. Is it any wonder that Bush chose to fill the first of two Supreme Court vacancies with one of the authors of Hamdan and the second with his own personal attorney and long-time friend?

Just this morning, the Washington Post's Dana Priest offers a fascinating and well-sourced look at the genesis of the Bush's most controversial decisions.

"The Bush administration did not seek a broad
debate on whether commander-in-chief powers
can trump international conventions and
domestic statutes in our struggle against
terrorism," said Radsan, the former CIA lawyer,
who is a professor at William Mitchell College of
Law in St. Paul, Minn. "They could have
separated the big question from classified details
to operations and had an open debate. Instead,
an inner circle of lawyers and advisers worked
around the dissenters in the administration and
one-upped each other with extreme arguments."

Priest adds the following:

Time and again, the administration asked
government lawyers to draw up new rules and
reinterpret old ones to approve activities once
banned or discouraged under the congressional
reforms beginning in the 1970s, according to
these officials and seven lawyers who once
worked on these matters.

Following 9/11, the Bush administration repeatedly pushed the envelope of executive power, and may well have crossed a number of lines. In the months and years to come, the legality of these decisions will be adjudicated in the federal courts. Bush knows that his legacy will, in large part, be measured by whether his decisions are vindicated or condemned as executive overreaching. Bush does have a litmus test for judicial nominees, and it has nothing to do with abortion.