WARRANTLESS SEARCHES AND THE PARAMETERS OF PRESIDENTIAL WAR POWERS
” Now Watergate does not bother me…Does your conscience bother you? Tell the truth “
– Lynard Skynard
“a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
– One Hundred Seventh Congress of the United States of America
” The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “
– The Fourth Amendment to The Constitution of The United States
This has been a very difficult post for me to write. While it is common to always suspect the worst of the other side, I think intellectual honesty requires the admission that there are serious, valid, competing, Constitutional claims being made regardless of the motivations of those making them. I doubt if I am going to please anyone with this post but let the chips can fall where they may.
The Bush administration has and is authorizing the NSA to conduct ” warrantless searches” via SIGINT related to al Qaida terrorism without following the procedures set forth in the 1978 Foreign Intelligence Surveillance Act of 1978 and subsequently amended. There are three questions at issue in my view:
1. What actually happened ?
2. Was is it Constitutional ?
3. Whether it was wise ?
What actually Happened:
Despite the flurry of press, we do not actually know what happened beyond he fact that (at least) 30 authorizations for warrantless surveillance have been given presidential approval since 9/11. The source for the warrantless searches who leaked the story had the option of leaking selectively only those instances that would do the most serious political damage to the Bush administration, knowing that left the Bush administration with the unpalatable option of revealing intelligence successes or sources to defend itself. We may or may not be looking at the puzzle in its entirety.
This was an effective power play by an IC or DOJ insider who is operationally part of or at least reviews top secret SIGINT programs. Given the amount of time that has passed from the time of the leak to publication on the NYT, this person may no longer even be employed by the Federal government (Note the swift depature of longtime CIA senior managers both before and shortly after Porter Goss became DCI, over a year ago). While I personally assume that the motivations in leaking were partisan, they may be related to intra-bureaucratic warfare instead of party politics or it may be generic ” whistleblowing” to stop the program on principle. We don’t know.
Was it Constitutional ?
The administration has laid out their legal case. While I have read some of this case law previously I am a diplomatic historian and not a constitutional scholar by training so I write the following from a historian’s perspective.
The Framers of the Constitution, as is clear from the language of the document and their own writings, did not regard wartime as a normal state of constitutional affairs. Madison and the Convention took pains to insert qualifying phrases for war, rebellion, invasion and public danger. They chose define treason as a crime possible only in the context of betraying the country to an enemy in time of war. The Congress was given the power to declare war and the President to be the Commander-in-Chief in unequivocal language. War did not suspend the constitutional guarrantees but it did make certain actions possible – like suspension of habeas corpus and quartering troops via legislation – that were otherwise constitutionally impossible.
When it comes to the constitutionality aspect based on ” inherent war powers” – provided the surveillance was in fact organically and directly related to foreign intelligence against al Qaida – the Bush administration has a much better Constitutional case than the technical legal argument that they, in fact, followed FISA. The ” inherent powers of the presidency” argument is not not new and has some merit – in fact FISA acknowledges the legitimacy of this inherent presidential power as it relates to war in the text of the legislation by setting a 15 day time limit on warrantless searches for foreign intelligence and formal procedure for implementing them. So the question arises, is such a restriction of the powers of Commander-in-Chief by the Legislative branch constitutional or an infringement on separation of powers ?
All three branches of government rely to an extent upon the assertion of unspecified, inherent, implied powers to carry out their duties – the doctrine of judicial review being the cardinal example. Few of the liberal critics of the Bush administration would interpret the powers of Congress or the judiciary as narrowly as they are doing for President Bush in the case of warrantless searches. Few of them yelped when Clinton did similar things. On the other hand, few conservative defenders of the Bush administration today would grant such a similarly broad field of authority to the Congress or, especially, to the courts. Partisanship is affecting constitutional analysis.
FISA, like The War Powers Act or The Tenure of Office Act is simply a statute intended by the Congress to circumscribe by legislation the powers of the Commander-in-Chief. This kind of claim for the Legislative Branch is dubious or at least debatable which is why no member of Congress ever pressed the War Powers Act to SCOTUS and why no president has accepted its constitutionality.
Moreover, in historical terms, this warrantless NSA surveillance is very small beer considering the scope of the president’s powers during wartime. Past presidents have ordered actions as wartime measures as Commander-in-Chief that, in comparison, are breathtaking- including:
Mass relocation and internment
Deportation, confinement or restriction of enemy aliens
Emancipation of enslaved persons
Military tribunals for civilians who are saboteurs or spies
Imprisonment and punishment of combatants on foreign soil
High alert for strategic nuclear forces
Abraham Lincoln also suspended habeas corpus (which the Constitution assigns to Congress), openly defied rulings of SCOTUS, placed regions of Union States under martial law and approved summary executions carried out by military authorities.
Regarding the Fourth Amendment and modern jurisprudence; it strains credulity that a Supreme Court that can find a reasonable and compelling state interest in having police stop and make a warrantless search of every vehicle on a road at checkpoints, simply on the premise that some driver might be drunk, is going to find signals intelligence directed at 30 suspected al Qaida terrorists out of 300 million people to be unreasonably intrusive. It would be hard to rationalize that a random drunk driver is a greater threat and thus, a legitimate exception to the 4th Amendment, than a terrorist who might potentially have access to a weapon of mass destruction.
Was it Wise ?
Whether it was overriding operational importance for the Bush administration to avoid going to the FISA court in these instances depends on the facts and the sensitivity of the source or method of collection. Since the Bush administration has not avoided the FISA court on other matters, it raises the question of whether these cases were of unquestionable sensitivity to national security and public safety or if the administration was simply making a political stand to preserve the presidency’s claim to possess ” inherent authority”. This question can only be answered by an investigation by the Intelligence Committees of the House and Senate.
I think it is safe to say that this move by the Bush administration was very unwise in at least the political and Boydian ” moral” senses, even if it was warranted by national security considerations or imminency of a threat.
The sharp partisan divisions that affect this country have sapped the government’s moral authority to command the respect and legitimacy that garners voluntary compliance, regardless of who might be in the Oval Office. George W. Bush is a viscerally polarizing president much like Richard Nixon, Abraham Lincoln or Bill Clinton. As such, half the country and most of the world believes, regardless of the reality, that Bush and Cheney are up to something nefarious, so they should take care not to feed that perception. Programs that smack of ” Big Brother” are rightly suspected by the public as being naturally prone to abuse even under the best of circumstances and the Bush administration simply does not have the presumption of goodwill needed to carry something like this off.
The American people want to hear that warrantless surveillance is an action the Federal government takes only in extremis to prevent acts of catastrophic terrorism and to prosecute the war against al Qaida- any appearance of lazy and unjustifiable” fishing expeditions” will – correctly in my view- raise a political firestorm. Absent the need to protect exceptionally delicate sources or methods or stop an imminent disaster, going to the FISA court should be the first choice because of the political and moral dividends of being able to point to a systemic check and balance on such an awesome power.
Like Caesar’s wife, the exercise of that kind of power must be above all reproach.
EXECUTIVE ORDER 12949: FOREIGN INTELLIGENCE PHYSICAL SEARCHES
EXERCISE OF CERTAIN AUTHORITY RESPECTING ELECTRONIC SURVEILLANCE
Intelligence Reform and Terrorism Prevention Act 2004: “Lone Wolf” Amendment to FISA, CRS Report
Bush administration brief
Recommended Reading on Warrantless Searches/War Powers From:
The Glittering Eye
The American Future