The Harder They Fall

By Matthew Rothschild, The Progressive. Posted January 20, 2006.

The Bush team keeps granting itself more and more power, including the power unilaterally to deem a law unconstitutional and then to flout that law.

That's essentially what the Justice Department said in the 42-page white paper on the NSA's warrantless spying program which it released on January 19.

With the Bush Administration's typical white-is-black Orwellian speak, it says that this program is "consistent with civil liberties," even though it acknowledges that "individual privacy issues at stake may be substantial."

For Bush and Cheney and Ashcroft, anything goes--including privacy--in the fight against Al Qaeda.

"The Government's overwhelming interest in detecting and thwarting further Al Qaeda attacks is easily sufficient to make reasonable the intrusion into privacy," says the Justice Department document, entitled "Legal Authorities Supporting the Activities of the National Security Agency Described by the President."

The gist of the Justice Department's argument is that the President's "inherent constitutional authority as Commander in Chief" and the Congressional Authorization of Military Force (AUMF) right after 9/11 give him all the power he needs to eavesdrop in the United States without a warrant.

It's not an easy argument to make, since the FISA law, as amended, requires that FISA is the "exclusive means" by which the NSA may engage in domestic surveillance. FISA requires a warrant except in the first fifteen days of an emergency.

Here is the argument. The Justice Department says "FISA expressly contemplates that the Executive Branch may conduct electronic surveillance outside FISA's express procedures if and when a subsequent statute authorizes such surveillance."

That "subsequent statute," the Justice Department says, is the Congressional Authorization of Force. But that authorization doesn't mention amending FISA. And on top of that, the Administration tried to get language into that authorization that would have permitted such warrantless eavesdropping, but the Senate didn't go along, as former Senator Tom Daschle has noted.

"Literally minutes before the Senate cast its vote, the Administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text," Daschle wrote in The Washington Post on December 23. "I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."

Yet this is the very authority that the Justice Department now claims for the spying!

Nor has the Administration sought to amend FISA to reflect its current interpretation.

Why bother? Instead, it pulls out this trump card: Even "if FISA could not be read to allow the President to authorize the NSA activities during the current Congressionally authorized armed conflict with Al Qaeda, FISA would be unconstitutional."

Why? Because it interferes with the President's power as Commander in Chief.

Here the Justice Department shows just how unlimited it believes that power is.

"The President has inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes," the Justice Department asserts. It says there is a "serious constitutional" question as to whether such spying "is such a core exercise of Commander in Chief control over the Armed Forces during armed conflict that Congress cannot interfere with it at all."

Clearly, the Justice Department believes that to be the case. "The NSA activities lie at the very core of the Commander in Chief power," it states. This is especially true in wartime, it argues.

But get this: The Justice Department thinks the President may be able to spy on us without warrants even when there is no war!

Matthew Rothschild is the editor of The Progressive.

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