The President Does Not Know Best

OK, everyone who has studied the Unitary Executive Theory of the Presidency, raise your hand. Anyone? Anyone?

If you are not raising your hand, you're not alone. As regular readers are aware, only recently has the world received notice that President Bush's "I can do anything I want" approach to governance has a name: the Unitary Executive Theory of the Presidency.

Not having heard of this concept, and thinking perhaps that I had missed something in Constitutional Law, I decided to survey a random sampling of attorneys about it. The group included civil practitioners, prosecutors, a federal judge, a former federal prosecutor who has a PhD as well as a J.D., defense attorneys, and a U.S. magistrate.

The precise question was, "When did you first hear about the Unitary Executive Theory of the Presidency?" Most said, "The past few weeks," but my favorite was, "A few seconds ago, when you asked about it." All agreed that the term does not appear in the U.S. Constitution and that, the last time they checked, we still had three branches of government.

Discussion of this "theory" has been prompted, of course, by President Bush's recent confession to a crime: repeatedly authorizing the National Security Agency (NSA) to intercept domestic electronic communications for foreign intelligence purposes without a court order in violation of the Foreign Intelligence Surveillance Act (FISA). FISA contains no exception for the President, but Bush claims his action is legal because: (1) Congress endorsed it in its September 18, 2001 Authorization to Use Military Force in response to Al Qaeda's September 11th attacks, and (2) he has inherent power as Chief Executive to act as he deems necessary in wartime. Many scholars, including Georgetown University's David Cole and former New York State Congressional Representative Elizabeth Holtzman have thoroughly debunked these arguments.

You don't have to be a constitutional scholar to know that Bush's legal justifications are weak. You merely have to consider the administration's duplicitous conduct. The Bush team has deliberately concealed this program, not only from the public and Congress, but, most damning of all, from the very agency that is responsible for executing the laws of this country: the Department of Justice (DOJ).

It has been widely reported that even Bush appointees, such as former Assistant Attorney General James B. Comey, and possibly former Attorney General John Ashcroft, objected to the NSA's wide-ranging warrantless spying. After 20 years as a federal prosecutor, I am absolutely certain that the vast majority of career attorneys at DOJ and criminal prosecutors from U.S. Attorneys' Offices around the country, as well as federal law enforcement agents, would have refused to participate knowingly in this program. Bush and his coterie knew that their legal arguments were weak and intellectually dishonest, if not ludicrous, so rather than making their case honestly, even to their own people, they avoided dissent by acting in secret and affirmatively misleading the entire country. Using a tragically familiar modus operandi, Bush has carried out his unlawful spying scheme by acting not as a unitary executive (whatever that is), but as a solitary executive -- as if the President Knows Best.

To understand the extent and complexity, not to mention frightening consequences, of Bush's deception with regard to the NSA's warrantless surveillance, it is necessary to consider some of the practicalities of FISA, both before and after it was changed by the PATRIOT Act.

As anyone who took high school civics knows, the government must get a warrant before conducting electronic surveillance on people within the United States. But before the September 11 attacks, few citizens knew that law enforcement had to follow different procedures to get that warrant, depending on the investigative purpose. If the purpose was chiefly to aid a criminal investigation, such as in a drug or bribery case, the agents had to get what was called a Title III warrant from the U.S. District Court. If the object was primarily to get foreign intelligence on someone within the U.S., regardless of whether they were communicating with someone in or out of the country, agents had to go to a secret court called the FISA court.