What Part of "Inherent Powers" Doesn't Specter Understand?

On Monday, Senator Arlen Specter took to the op-ed page of the Washington Post to defend his "compromise" bill on the NSA warrantless wiretapping program. As I discussed in this post and here, that bill is anything but a compromise. It would punch holes in the laws prohibiting unchecked Presidential spying on Americans; give the FISA courts unusual and vast powers to legislate (by approving entire programs rather than individualized warrants); and it would tilt the scales of justice by moving pending suits against spying into a court the government believes will be more favorable to it. (That includes our case, CCR v. Bush, and other important lawsuits from the ACLU and EFF.)

Specter's bill does something you don't see everyday from Congress: it implies that the President may have powers to carry out warrantless surveillance that are not spelled out in the Constitution, but that Congress lacks the power to check in any way.

Why would anyone in Congress--Senator, Representative, anyone--say such a thing? Here's what Specter had to say in the Post:

"On its face, the [NSA] program seems contrary to the plain text of the 1978 Foreign Intelligence Surveillance Act (FISA), which regulates domestic national security wiretapping. The president argues, however, that his inherent constitutional powers supersede the statute. Without knowing the exact contours of the program, it's impossible to say whether he is right or wrong. But three federal appeals court decisions suggest the president may be right."

Where the Constitution doesn't say anything about which branch of the federal government has power over an area, there are two possibilities: either (a) the federal government does not have any such power, or (b) the federal government does have some power in the area.

If the federal government does have powers in the area (and assuming nothing in the Constitution's text, history or structure makes it clear that one branch should have exclusive control over that unenumerated power), then the two political branches, Congress and the Presidency, share power in the area.

Now, if Congress hasn't legislated in an area of shared power, then there is the possibility that the President may be able to exercise some power there notwithstanding a lack of Congressional authorization.

This is what several Courts of Appeals decided regarding foreign intelligence surveillance (in the years before Congress passed the Foreign Intelligence Surveillance Act): the President had some ability to gather foreign intelligence via surveillance without seeking judicial warrant (so long as the surveillance passed Fourth Amendment muster), since Congress had not yet said otherwise. But if Congress has legislated in a field of shared powers, the President is bound by the law. It's that simple.

But don't take my word for it. The Supreme Court reiterated this rule last month (in the Hamdan opinion):

"Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. ... The Government does not argue otherwise."

Nor could it. The Constitution doesn't say anything about the President having the power to carry out this kind of warrantless surveillance. Congress has occupied the field with legislation making the pre-FISA Court of Appeals decisions Specter alludes to irrelevant. And no amount of "[l]oose and irresponsible use of adjectives" such as "'[i]nherent' powers, 'implied' powers, 'incidental' powers, 'plenary' powers, 'war' powers and 'emergency' powers" will alter that simple legal verity. (Professor Marty Lederman uses this quote from Justice Jackson's concurrence in the Youngstown case in his elegant exposition of all this here, and a more recent post here.)

Nothing in Specter's op-ed explains why his "compromise" is necessary. He claims:

"The challenge, which I have been trying to meet legislatively, is to structure a procedure under which the courts can adjudicate the lawfulness of this highly sensitive program while maintaining the secrecy the president contends is so important. ... My bill, the result of months of negotiation with the administration, accomplishes this goal by authorizing consideration of the program by the Foreign Intelligence Surveillance Court (FISC), the court created under FISA to consider warrant applications. The FISC has the expertise to handle this question. Its closed proceedings and unblemished record for not leaking would make full consideration both possible and secure. ... The bill would also transfer the various lawsuits challenging the program to the FISC for consideration under its secure procedures."

First, the final sentence is flat-out wrong. The bill would actually move all cases challenging the NSA program to the Foreign Intelligence Surveillance Court of Review, not the FISC. Second, neither Specter nor the other apologists for such transfer proposals can point to a record of the ordinary federal courts spilling secrets. In fact, ordinary federal courts have been hearing criminal cases involving intelligence agent defendants for two decades under procedures permitted by the Classified Information Protection Act without incident. (It's also unclear what "expertise" the Court has in deciding cases on the constitutionality of the FISA statute, since the Court has only decided one case in 27 years, and two of the three members who heard it are now gone.)

Specter ends with a challenge:

"If someone has a better idea for legislation that would resolve the program's legality or can negotiate a better compromise with the president, I will be glad to listen."

Might I suggest doing nothing? A fair resolution of the existing cases against the NSA Program could end what he admits "has been a festering sore on our body politic since it was publicly disclosed last December," and give us "an answer to the question of whether this program is legal" that would restore "[t]he integrity of our nation's adherence to the rule of law." (Barring that, the bill he co-sponsored with Dianne Feinstein just a few weeks ago responded to most of the objections to the existing FISA scheme raised by the President without attempting to short-circuit our litigation or create a slew of new warrantless surveillance powers for the President to use as he pleases.) I am as frustrated as Sen. Specter is with the pace of litigation, but in a few weeks the courts will probably provide an answer on the legality of the Program. It just may not be the answer the President wants.

July 25, 2006