When Bad Legal Arguments Face Real Judicial Scrutiny

Back in December of 2005, when the New York Times first revealed that the Bush administration was bypassing the FISA Court and engaging in illegal warrantless surveillance, the administration's legions of apologists--eager to point to some legal justification for the administration's actions--rushed to embrace a constitutional argument that was so frivolous and so utterly devoid of support in the case law or the Constitution itself that, up until that point, no respectable lawyer would have even considered raising it in Court. Many of us pointed out at the time that this argument--that the President somehow retains the inherent authority to disregard FISA--was baseless and highly unlikely to withstand judicial scrutiny.

Yet, in the two and a half years since then, this ridiculous argument has been repeated so many times and in so many different venues by various Republican shills and talking heads that it has essentially become gospel truth in Republican circles.

But there are still realms in which Republican talking points don't determine reality, and one of those realms is the court room. In court, particularly in federal court, you can't just rely on repetition and bluster. At some point you actually have to marshal convincing arguments and relevant case law. It's not at all surprising, therefore, that Judge Vaughn Walker--a Bush appointee--became the latest in a string of judges to affirm what all of us have been saying for the last two and a half years: that the president does not have the authority to disregard FISA, a duly enacted federal statute that expressly circumscribes the president's power to conduct warrantless surveillance of people within the United States. Here are the key passages from his opinion:

The impetus for the enactment of FISA was Congressional concern about warrantless wiretapping of United States citizens conducted under a justification of inherent presidential authority under Article II. Congress squarely challenged and explicitly sought to prohibit warrantless wiretapping by the executive branch by means of FISA, as FISA’s legislative history amply documented. . . . In the case of FISA, Congress attempted not only to put a stop to warrantless wiretapping by the executive branch but also to establish checks and balances involving other branches of government in anticipation of efforts by future administrations to undertake warrantless surveillance in some other manner:

In the past several years, abuses of domestic national security surveillances have been disclosed. This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties. This committee is well aware of the substantial safeguards respecting foreign intelligence electronic surveillance currently embodied in classified Attorney General procedures, but this committee is also aware that over the past thirty years there have been significant changes in internal executive branch procedures, and there is ample precedent for later administrations or even the same administration loosening previous standards.

H R Rep No 95-1283(I) at 21. Given the possibility that the executive branch might again engage in warrantless surveillance and then assert national security secrecy in order to mask its conduct, Congress intended for the executive branch to relinquish its near total control over whether the fact of unlawful surveillance could be protected as a secret.

Indeed, judging from their extreme reluctance to raise the issue, it is obvious that even the DOJ realizes how weak the inherent authority argument is. This passage from the opinion is particularly revealing in this regard:

Egan recognizes that the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required. Egan’s formulation is, therefore, a specific application of Justice Jackson’s more general statement in Youngstown Sheet & Tube. It is not entirely clear whether defendants acknowledge Congress’s authority to enact FISA as the exclusive means by which the executive branch may undertake foreign intelligence surveillance in the domestic context. While their papers do not explicitly assert otherwise, defendants’ attorney in this matter stated in open court during the hearing herein held on April 23, 2008 that, while he conceded that “Congress sought to take over the field” of foreign intelligence surveillance (Doc #452 at 29:2-3), whether the president actually had constitutional authority under article II to order such surveillance in disregard of FISA remained an open question: “[D]oes the president have constitutional authority under Article II to authorize foreign intelligence surveillance? Several courts said that he did. Congress passed the FISA, and the issue has never really been resolved. That goes to the issue of the authority to authorize surveillance.” Id at 33:7-12. Counsel repeatedly asserted that this issue was entirely separate from the preemption inquiry relevant to the state secrets privilege and urged the court not to “conflate” the two inquiries.

To the contrary, the court believes that the two areas of executive branch activity pertaining to foreign intelligence surveillance are not distinct for purposes of this analysis as defendants’ counsel asserts. Congress appears clearly to have intended to——and did——establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.

I've become disillusioned about many things over the years, but I still remain relatively confident that really bad legal arguments--even if they work politically for a time--will ultimately be dispatched when they face real judicial scrutiny. Federal judges--whether conservative or liberal--are highly intelligent and analytical people, people who care about their reputation among their peers and among legal scholars. They're not the kind of people who are going to sign their names to arguments that don't even pass the smell test, even if the entire Republican party is screaming for them to do so. In other words, federal court isn't like an episode of Hannity & Colmes.