Edward Lazarus

Legalizing Warentless Wiretapping

New legislation that would rewrite the rules governing foreign surveillance wiretaps is making its way through the Senate Judiciary Committee. The legislation's content is predictable: The GOP-controlled Congress is giving the President essentially what he wants, by approving his NSA wiretapping program.

What's surprising, however, is that it appears Committee Chairman Arlen Specter - previously a critic of warrantless wiretapping - is fully on board with the legislation. Based on his public statements, the key to Specter's support is his belief that the legislation sets up a meaningful judicial review of the whole wiretapping program, as well as of the President's authority in this area.

But the proposed legislation seems to do the opposite of what Specter says he intends. Far from ensuring meaningful judicial review of the President's power to engage in warrantless wiretapping, it seems the proposed legislation all but ensures judicial approval of the NSA wiretapping program -- even if the President continues to ignore the FISA court process that he now claims he is willing to honor.

Of course, the proposed legislation raises a host of profound questions. But for present purposes I will limit my consideration to the way it subtly (or perhaps not so subtly) changes the basic constitutional questions that will face a court when the program, under the new statute, is ultimately reviewed.

The Controversial Program, and Specter's Prior Position

The Bush Administration's program of secret warrantless wiretaps has been controversial ever since it was first revealed. Critics charge that the Administration violated the Foreign Intelligence Surveillance Act (FISA) by bypassing the secret FISA Court -- which Congress established more than 30 years ago as the exclusive vehicle for authorizing foreign surveillance wiretaps.

In defense, the Bush Administration has claimed that the President's inherent constitutional power to fight the war on terror justified the bypass of Congress' legislation, and thus of the FISA Court.

Specter put himself on record long ago as a skeptic when it comes to such claims. Indeed, as recently as last week, Specter continued to hound the Administration over its handling of the warrantless wiretap issue. Though sharp questioning, Specter got Attorney General Alberto Gonzales to admit that President Bush had personally intervened to scuttle an internal Department of Justice review of the controversial program.

The legislation that's pending in the Judiciary Committee - touted as a compromise - is meant to resolve the issue, and to quiet those who would make an issue out of Bush's aggrandized view of his own power. The proposed law has been touted as a compromise between the Administration and its critics - one that purportedly has Bush acquiescing in the need to have the FISA Court approve foreign intelligence wiretaps.

In fact, this legislation is no compromise. It aims to render the Executive's compliance with FISA voluntary - and that's Attorney General Gonzales's interpretation, not just my own. It also aims to ensure that no meaningful judicial evaluation of the Bush program will ever take place.

Under FISA, as noted above, the FISA Court is the one-and-only authority for granting permission for foreign intelligence wiretaps; circumventing the FISA Court is illegal, and indeed, a federal crime.

But under the new legislation, this would no longer be the case. Instead, the Executive branch could authorize its very own wiretapping, of its own accord.

To this effect, the proposed legislation adds an explicit disclaimer that the legislation "shall not be construed to limit the constitutional authority of the president to collect" foreign intelligence. And it expressly permits foreign intelligence wiretapping not only as authorized by FISA, but also "under the Constitution" - a clear reference to the President's purported independent power to surveil, which the Administration claims stems straight from our founding document.

This language does something anyone who's been reading the news can see: It incorporates and restates the President's argument regarding warrantless wiretapping - that he has the right to do it, and that this right comes from the Constitution -- instead of in any way backing off from it.

Is it really in any sense a "compromise" if the President can bypass the FISA Court any time he feels like it? Separately, Bush has pledged to seek the FISA Court's permission for future wiretaps. But that pledge is not part of the law, and thus it's a pledge that can be broken or reversed without public notice. What if the President changes his mind - and does so secretly? Surely the Administration may be tempted to route its slamdunks to the FISA Court, and keep its dicey surveillance, in close cases, for in-house authorization, purportedly under the Constitution.

In addition, this language also does something that only those who follow constitutional law may fully appreciate: It tries to control the reviewing court's view of the issue (as well as making sure that this review is not that of the Supreme Court, which recently has been clear about the limits to executive power, but of the FISA court instead).

Here's how the legislation tries to stack the deck in favor of the President's program, ensuring it gets upheld when it gets reviewed in court:

In both Hamdi v. Rumsfeld and this year's Hamdan v. Rumsfeld, the Supreme Court has rebuffed the Bush Administration's claims to broad inherent Executive Power to decide how to treat detainees from the war on terror. And - crucially for our purposes -- in both cases, the Court has reaffirmed the time-honored thinking governing claims of Executive authority in the field of foreign affairs: the analysis that Justice Robert Jackson laid out more than fifty years ago in the "Steel Seizure case," Youngstown Sheet & Tube v. Sawyer.

In Youngstown, the Court invalidated President Truman's attempt to nationalize the steel industry to avoid a potentially crippling labor strike during the Korean War - on the ground that Truman's plan was contrary to Congress's expressed view of Executive Power to intervene in labor disputes.

Jackson concurred in the decision - but the Supreme Court has since enshrined his concurrence into law, most recently in Hamdi and Hamdan. (Some boosters of the Administration thought that in these cases, the Court might back off from, or reframe, the Youngstown test. But they were dead wrong; instead, the Court embraced it - and embraced it generally, not only in the context of detainees.)

Under the Youngstown analysis, the President's powers over foreign affairs fall into three categories, depending on the actions of Congress:

First, when the President acts "pursuant to an express or implied authorization of Congress," his power is "at its maximum."

Second, when the President acts "in the absence of either a congressional grant or denial of authority," the Executive acts in a "zone of twilight" in which Congressional silence may, in effect, "enable, if not invite" independent presidential action.

And third, when the President "takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb."

Under the current state of the law, it is readily apparent that Bush's warrantless wiretapping program fits into this third and most problematic category - where the President's power is at its "lowest ebb." After all, in FISA, Congress gave the FISA Court the exclusive power to authorize foreign intelligence wiretaps and it made it a federal crime to circumvent the court's exclusive authority.

The proposed legislation, however, brazenly attempts to catapult warrantless wiretapping out of the third category, and into the first (or, at worst, the second) - with a little sleight-of-hand. After all, the new law expressly authorizes the President to act outside the FISA framework to the extent he can do so "under the Constitution."

The idea, then, is that if Congress says in the legislation that the President can violate FISA, then a Congressionally-forbidden action is neatly flipped -- converted into an expressly-Congressionally-permitted action under Youngstown.

There is an exquisite circularity to all this. Under Youngstown, the President's authority depends on Congress's expression of its will: Has it spoken to permit him to act, kept silent, or spoken to forbid him to act? Under the new legislation, Congress expresses its will by saying it is not limiting the president's constitutional authority - an authority whose force is, under Youngstown, itself defined by Congress's expression of its will!

Will the sleight-of-hand work with the FISA Court (assuming the legislation's bid to designate the FISA court as the exclusive court here indeed works)? Perhaps, and perhaps not.

On one hand, Congress will surely have spoken to this issue, if this bill has passed - and Youngstown says federal courts must listen when Congress speaks, giving Congressionally-blessed Presidential action only weak scrutiny.

On the other hand, though, on matters of constitutional law, the Supreme Court's opinion, as expressed in its precedent, trumps that of Congress - and thus the FISA Court may give little weight to a Congressional attempt to enshrine in a statute what is, in light of Supreme Court precedents like Hamdi and Hamdan, as well as Youngstown itself, a misreading of the Constitution.

Put another way, even if Congress says in a statute that surveillance comes within the President's constitutional powers, that doesn't necessarily make it so.

That brings us, finally, back to Specter.

According to Specter, the beauty of the new legislation is that the Administration, in a supposedly monumental concession, has agreed to let a federal court "consider the [secret wiretapping] program as a whole and make a decision on" its legality.

But what good does federal court consideration do, if the legislation itself has rigged the Youngstown analysis decisively in the President's favor?

Specter, by all accounts, is a very smart man. Is he betting that the reviewing court will simply put Congress' constitutional judgment aside, and look to precedents like Hamdi and Hamdan instead? If so, he may be untroubled by the carve-out for constitutionally-grounded secret surveillance powers, simply because he's confident the Court will hold the President has none.

Or does Specter read the bill as what it purports to be - a rubber stamp of the President's program, and an attempt to force a federal court to rubber-stamp the rubber stamp? If so, is he simply reversing himself because of some kind of political calculation, or re-calculation?

If Congress wants to endorse what Bush has been doing, it should do so honestly and not pretend that it is setting up a genuine judicial evaluation of the President's power to do what he's been doing. And if Specter has changed his mind, he ought to say so.

The principle at issue here could not be more fundamental: It is that of our Constitution's system of checks and balances. If Congress is going to indeed allow the President unilateral surveillance powers, and if it is even going to try to stop any federal court from standing in the way, then the public should know.

Will Brown Go Down?

Last week, the Supreme Court granted review in two cases involving the use of race in pupil placement in public schools. Though the cases themselves hail from Jefferson County, Ky., and Seattle, Wash., the court's eventual decisions will directly affect hundreds of other school districts across the country that use race in some fashion in determining which students will attend which schools.

The decisions will also go a long way towards revealing whether our newly reconstituted court will be changing from the moderately conservative course it has charted on race issues for the last two decades. And, as I will explain, they will help define the court's take on the highly contested legacy of Brown v. Board of Education.

Brown v. Board of Education is surely the most important legal decision of the 20th century. Its holding alone -- declaring unconstitutional the state-mandated racial segregation of public schools -- was momentous. But its meaning was larger still: Brown stands as a huge milestone in the long American journey to overcome the original sin of slavery and redeem the founders' promise of equality for all.

Although Brown generated enormous controversy and furious backlash in some quarters when it was first decided, the decision (if not every aspect of its analysis) has, by now, become almost universally accepted as constitutional gospel.

But for all its importance, and for all the praise it now receives from public officials and aspirants to judicial office, Brown's historical legacy is still very much in flux. After more than 50 years, we are still rethinking and reshaping what we believe Brown actually means -- both as a legal precedent and, more broadly, as the foundation stone for our constitutional commitments on the issue of race.

The leading commentator on Brown, Richard Kluger, described the opinion's moral and historical significance as "nothing short of a reconsecration of American ideals" -- rightly so. Yet we are still working out which ideals, exactly, the decision actually champions.

I remember my constitutional law professor, Burke Marshall (who had been head of the Civil Rights Division in the Kennedy administration) putting the following questions to me:

Does Brown mean only that states cannot require blacks and whites to go to separate schools?

Or, when Brown says that separate educational facilities are "inherently unequal," is it mandating some form of actual integration by creating a right for black school children to attend a racially mixed school?

Or, did Brown mean something in the middle? Did it mean that, on the one hand, states had to remedy their own affirmative acts of segregation by affirmatively eradicating the effects of past segregation, but, on the other hand, government did not otherwise have to provide for racially balanced school systems?

Or, alternatively, is Brown, when read against the backdrop of America's tragic history of race relations, best viewed as calling for a "color-blind" Constitution -- one in which government may basically never use race as a factor in its decision making, even when the government is seeking to help minorities instead of stigmatizing them?

Every one of these positions can be plausibly defended as a way to interpret Brown. In this sense, Brown is something of a Rorshach test for one's views about the nation's complicated history of racial oppression, and its attempts to rectify the consequences of this past.

Now, the new Roberts court -- as deeply divided about this issue as about any other, and including two new justices -- is about to take this test again.

The facts of the cases before the court

The first case, from Kentucky, involves what is known as a "managed choice" plan -- one in which the school district actively seeks to maintain racial balance in its schools. Jefferson County, Ky., which once ran a segregated system, administers its managed-choice system in a way that takes into account student-parental choice, while also ensuring that each of its schools maintains a minority enrollment of between 15 percent and 50 percent. The district as a whole is made up of roughly one-third minority students.

The second case, which comes from Seattle, Wash., involves an "open choice" plan. Under this plan, parents get to choose which school to send their children to. But when schools are oversubscribed, the school district uses certain "tie-breaking" factors to determine which applicants will actually get to attend the school of their choice.

Under some circumstances, those factors include race. Specifically, if an oversubscribed school is racially imbalanced -- meaning that the school's racial balance departs by more than 15 percent from the minority-majority balance of the district as a whole -- then the race of the applicant may be considered in the district's school placement decision.

Seattle's race tie-breaker can effect both white and minority students. A white student might be moved out of a school that had disproportionately few minorities, despite that student's preference, and by the same token, a minority student might be moved from a disproportionately minority school, despite the student's own choice.

The Jefferson County and Seattle programs survived constitutional challenges in the lower federal courts. Both the U.S. Court of Appeals for the Sixth Circuit (in the Jefferson County case) and the U.S. Court of Appeals for the Ninth Circuit (in the Seattle case) ruled that the respective placement programs did not violate the Equal Protection Clause of the Fourteenth Amendment.

Applying the rigorous test the Supreme Court mandates when governmental programs that use racial classifications are at issue, the two circuits deemed their respective programs "narrowly tailored" to advance "a compelling governmental interest."

In reaching this conclusion, the lower courts were applying the test with special attention to the Supreme Court's 2003 decision in Grutter v. Bollinger. There, a narrow majority of justices approved the University of Michigan Law School's affirmative action in admissions program and held that the government has a compelling interest in the societal and educational benefits that flow from diversity in the classroom.

As the Sixth and Ninth circuits recognized, the Jefferson County and Seattle plans sought to advance much the same kinds of interests that were involved in Grutter. In the view of the school districts, diversity in schools improves the critical thinking of students, improves race relations in the community and creates a healthier body politic by inculcating tolerance and other positive values in a new generation.

Neither the Sixth Circuit nor the Ninth Circuit saw any reason to second-guess the empirical and experiential views of these local educators about the compelling benefits of diversity. And, indeed, the court in Grutter had recognized the appropriateness of deferring to such local judgments.

But -- and it's a major " but" -- Grutter was a 5-4 decision in which Justice Sandra Day O'Connor, now retired, wrote the majority opinion. Her swing seat on race issues is now occupied by Justice Samuel Alito, who in the past has expressed quite conservative views on these matters, including a strong aversion to affirmative action. As a result, when the court hears the Jefferson County and Seattle cases, the Grutter-based principles that guided the lower courts will themselves be up for grabs.

Which brings me back to Brown and its legacy. It may be that Brown was never intended to require states to create and maintain integrated schools. And, to be sure, Brown stands as a cautionary tale about the government using race as a factor in its decision making.

But can it really be that the Constitution should be interpreted as preventing government officials from voluntarily seeking to maintain integrated schools, especially when they do so in a way that gives no racial preference and creates no racial stigma?

This is the point underlying a powerful opinion written by Ninth Circuit Judge Alex Kozinski, concurring in the decision upholding the Seattle plan. As Judge Kozinski correctly observes, the effort to maintain racial balance in public schools does not come with the poison that ordinarily infects the use of race by government. There is nothing about these plans that is designed to oppress racial minorities, as the pre-Brown apartheid system did. Nor do the pupil placement systems give one racial or ethnic group an edge over any other. Nor do the programs promote segregation of the races, which can be an evil in itself.

We should blind ourselves to these nuances, Judge Kozinski wisely counsels. Under the Lexington and Seattle plans, individual white and minority students alike may be disappointed in their ultimate school assignment. But in creating these disappointments, school officials are placing no value on one race or another. They are simply seeking to ensure that their schools bear some racial resemblance to their communities as a whole, while recognizing the important truth that we all benefit from developing an ability to interact with those who come from different cultural and racial backgrounds than our own.

Those who advocate a kind of purely color-blind Constitution that would prohibit the Lexington and Seattle programs often quote Martin Luther King Jr.'s famous dream about a nation in which his children would be "judged by the content of their character and not by the color of their skin." Fair enough.

But that wonderful speech had another image in it. King also dreamed of day when little black boys and girls would join hands with little white boys and girls as brothers and sisters. This was a dream, I would argue, that had its birth in Brown.

It is no secret that our public schools remain, as a practical matter, largely segregated -- notwithstanding Brown and all the progress that has been made with respect to racial equality. It would be a tragedy if the Supreme Court abandoned King's dream by prohibiting elected officials from bringing kids of every color to every schoolyard, so that the hand-holding of the next generation may begin.


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