They're Right This Time

In Sunday's New York Times article about the new FISA bill, Eric Lichtblau and James Risen write:

At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.”

Brian Walsh, a senior legal fellow at the conservative Heritage Foundation who attended the same private meeting with Justice Department officials, acknowledged that the meeting — intended by the administration to solicit recommendations on the wiretapping legislation — became quite heated at times. But he said he thought the administration’s stance on the president’s commander-in-chief powers was “a wise course.”

“They were careful not to concede any authority that they believe they have under Article II,” Mr. Walsh said. “If they think they have the constitutional authority, it wouldn’t make sense to commit to not using it.”

A number of bloggers have cited this passage as evidence of the Bush administration's continuing disdain for the rule of law. As the saying goes, though, even a broken clock is right twice a day. In this case, the problem is not with the administration's position, but with the law itself.

The way FISA was structured prior to the most recent amendments, there really was no colorable legal basis for disregarding its prohibitions. The administration's arguments for doing so were frivolous to the point of bad faith. FISA, by its terms, provided the "exclusive means" for conducting electronic surveillance involving U.S. persons, and under long established constitutional case law, the president does not have the power to disregard a duly enacted statute. The fact that this administration blatantly violated FISA for almost six years is ample evidence of its disdain for the rule of law.

But, as I've pointed out, the redefinition of "electronic surveillance" under section 105A of the new bill significantly alters the statutory scheme. FISA only purports to provide the exclusive means of conducting "electronic surveillance." With respect to any activities that fall outside the scope of that definition, FISA does not purport to limit or constrain the president's inherent Article II authority. As Justice Jackson famously said in Youngstown:

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility.

Under the new law, a vast swath of surveillance activities that were previously subject to FISA's exclusive requirements now fall within this "zone of twilight" in which the president has concurrent authority. The procedures laid out in section 105B are not "exclusive" under the new statutory structure and therefore it's not at all surprising that the administration would refuse to concede that it is "bound" by them. Indeed, it's unlikely that any administration would voluntary cede executive powers for which there exist good faith legal justifications.

Which is a long way of saying that the outrage here is more properly directed at the members of Congress who voted for this bill (and can, theoretically, fix it) not the administration officials who won't promise not to use the new powers they've just been given.