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The wiretap issue is often portrayed as a simple controversy involving two reasonable, yet disparate views.  Likewise, any suggestion that the wiretap program was clandestinely authorized “in contravention of previously existing law,” has routinely been interpreted simply as one potential viewpoint of many. That approach is not only incorrect, but barely dances around the real issue.  That issue, in turn, goes to the core of our Constitution.

FISA is clear and direct;  It covers communications to or from U.S. citizens or permanent resident aliens in the United States.  50 U.S.C. 1801(f), 1801(i). FISA also states, "A person is guilty of an offense if he intentionally engages in electronic surveillance...except as authorized by statute." 50 U.S.C.1809.  As for such authorization; the Federal Wiretap Act provides that its procedures and FISA "shall be the exclusive means by which electronic surveillance ... may be conducted." 18 U.S.C. 2511(2)(f).  FISA even has a specific provision denoting its application in times of war.  50 U.S.C. 1811. (FISA was also amended by the Patriot Act of 2001 (at Sec.'s 206, 207, 214, 215), passed in response to 9/11, which many have argued ushered in said war time, giving further reference to its war time applicability.)  

Though rarely covered by the media, these facts are basic, and unambiguous.  Yet they have, ironically, been obscured by improperly invoking the Constitution in support of the administration's actions. (Even more ironically, the Constitution also raises potential 1st,  5th, and perhaps 4th Amendment issues regarding the NSA wiretap program, FISA aside.)   A president, as Commander in Chief, may have the authority in specific instances to disregard the law where urgency requires not waiting for the appeal of a FISA app' denial.  The need for this would be minimal:  Such a denial itself would probably be rare, and FISA provides for the ability to obtain a warrant after the covert action as well, whenever such a need is perceived.  Additionally, in those instances were specific exemption was taken, there would still be an application and appeal on record.  

It is a different matter altogether, to then conclude that therefore the Executive Branch can disregard the law, in its entirety (although this is precisely what the Administration has done) merely because it is in some way, shape or form ancillary to a war effort -- be that war effort declared, or (as in this case) undeclared, by Congress. 

Regarding the often recited Article II, Section 1 executive powers clause, "The executive power shall be vested in a President," this is specifically an executive, not a legislative, function, and denotes the function of administering the law; namely, that the President "take care that the laws be faithfully executed" as set forth by Article II, Section 3.

This requirement that the President see that “the laws be faithfully executed,” is not magically suspended (particularly when it is the executive branch itself that is not following the law), by Article II, section 2's, "Commander in Chief" clause, just because the executive branch can make an argument that it somehow relates to a war effort.  To do so would render the separation of powers concept virtually meaningless in any time of war, stated or implied. This is also something which clearly would have been noted -- were this our Founders' bizarre intent -- by some constitutional reference beyond "Commander in Chief."  Moreover, prior to the Bill of Rights, the separation of powers concept, along with a general check on the government's overall power - -also very much at issue here -- was the main purpose for establishing our Constitution in the first place.    

In essence, what the Commander in Chief clause does speak to are cases where the Congress and President may be in conflict; that is, where a Congressional order may impinge directly upon a President's ability to function as Commander in Chief of the armed forces (or, more ambiguously, in the absence of express Congressional Legislation, where the Executive Branch may have quasi legislative authority in specific instances directly related to a war effort). To suggest that this ability is somehow impinged because the President might be prohibited from spying without any warrant requirement upon U.S. citizens, or anything else a zealous executive branch might argue, is essentially arguing that it is impinged by whatever the Executive so chooses, regardless of Congressional dictate. This is not only legally specious, but would largely undermine the most essential purposes of the Constitution itself.  

[If this were not the case, what would be the check upon any power of the President over citizens, if the Executive Branch simply "felt" they were a threat, or that in some way it was related to the war? (Hence why the requirement of a warrant is such a critical component of the 4th Amendment.)  Under this reasoning, the Executive Branch could take whatever action it desired, even if it violated previously existing statute, as well.  As a legal argument, apart from less ambiguous Bill of Rights issues, it is virtually indistinguishable from a far more obviously preposterous one ordering the media shut down, on the grounds that information and disagreement -- in effect the essential engines of democracy -- was "giving comfort and encouragement to the enemy," or otherwise getting in the way of the President being able to effectively Commandeer the war, or any other action the executive branch decided to take, clandestinely, or otherwise.]

Echoing similar sentiments to these was John Dean, former Nixon White House Counsel, on MSNBC's "Countdown," April 6, 2006.  Asked briefly about Attorney General Alberto Gonzales's response that he was "not going to rule it out" as to whether the AUMF authorized completely domestic spying (which as FISA makes clear is largely indistinguishable from spying where one citizen is a party), Dean responded:

"Quite remarkable. Quite remarkable. Obviously, we have a Commander in Chief who believes that anything in the name of fighting terrorism, he has authority to do. I would remind people that don't feel concerned about that, that a nation that loses control and the check on its Commander in Chief is something other than a democracy."  

Dean’s statement, while unusually sweeping and harsh, was consistent with the approach of the media; offering “experts” opinion on both sides with little underlying analysis or factual basis. (In fairness to MSNBC in this instance, Dean was merely answering a side question to the main analysis of former Dick Cheney Chief of Staff “Scooter” Libby’s contention that he was authorized by the President to leak classified intelligence information in response to an early July, 2003 NY Times Op ed piece by Ambassador Joe Wilson -- in direct contradiction to the President’s statement to the Nation in September, 2003, that he not only had no knowledge of any such leaks or who could have been responsible, but that he would get to the bottom of it as well).  And Dean has been an outspoken critic of the Bush administration's processes.

But his point is still well taken.  The Administration's argument, is, essentially, that the executive branch can do whatever it wants (during this entire time of fighting terrorism, which may be indefinite) in order to fight terrorism, regardless of what Congress -- which actually writes the laws under our Constitution -- legislates.  This would, once again, render the clear delineation of powers under the Constitution essentially null and void.

Reagan Deputy Attorney General Bruce Fein, concisely echoing the point herein, notes;

"The founding fathers would be alarmed by George W. Bush's 'trust me' defense for collecting foreign intelligence in violation of the Foreign Intelligence Surveillance Act (FISA) and the Constitution's separation of powers."

As explained in this letter:

In essence, there are three levels of Executive power. The greatest, as conservative, federalist society member [Robert] Levy points out (again, talking specifically about war powers ) are when the President acts pursuant to an act of Congress. The lowest is, of course, when the President acts in contravention of a direct act of Congers.  The middle ground is when the President acts in the absence of any act of Congress. (It is here that items become "nebulous," and reasonable interpretations differ.)

For the Executive branch to act in direct contravention of Congress in the third category, it needs to have a compelling reason. The reason offered -- that the Constitution states that the President is Commander in Chief, and that, in essence, "the President thought that it was a good idea" (when we are talking about operational detail over United States citizens, that raises additional constitutional issues to boot, no less) -- is no different a reason than contending that the Constitution does not apply in war time.

To quote from Levy's Judiciary Subcommittee testimony; "The executive branch cannot, in the face of an express prohibition by Congress, unilaterally set the rules, execute the rules, and eliminate oversight by the other branches."

Under our Constitution, Congress has the duty and power to legislate, and the executive branch, the duty and power to execute and administer the law. Thus, for a reason to be sufficiently compelling, the law itself would have to be unconstitutional, or otherwise directly conflict with the President's capacity to operate as "Commander in Chief."

To argue, implicitly, that deciding to violate a law requiring a warrant to spy on American citizens somehow infringes upon that capacity, is equivalent to arguing that anything the President were to decide is somehow relevant to "fighting a war," would likewise infringe upon that capacity. If not, we'd be reduced to squabbling over what is and is not a good idea. And this is precisely what Congress is for. If the President could nevertheless override Congress on matters of Legislation, then the President by definition would have the power to determine "what is, and isn't," a good idea, bringing us back to the conclusion that, under this bizarre argument, the President would have absolute legislative authority with respect to anything that he deemed relevant. (This does not even consider the separate issue of acting clandestinely.)

Thus, in essence, not only would the President have executive authority (the authority and duty to "see that the laws be faithfully administered, under Article II, Section 3) but both legislative authority and the ability to ignore both existing and subsequent legislation. This would, as noted [herein], render the most fundamental purpose of the Constitution -- the separation of powers clause -- essentially null and void.

It is also repeatedly suggested that the AUMF resolution of 2001 supersedes FISA (this argument has been made repeatedly by Attorney General Gonzales, for example, and offered as one of “two” sides to the “controversy,” in most media accounts of the issue, MSNBC's visit with Nixon White Counsel John Dean not withstanding ). 

First of all, this is illogical, solely based upon the fact, as noted, that the U.S. Patriot Act amended FISA, and came after the AUMF resolution (October 26, v. September 14, of 2001).  But more pointedly, the argument that the AUMF, unlike any other piece of legislation in our 200 plus year history, somehow authorizes violations of other laws not in direct conflict without otherwise expressly or implicitly so stating, from a legal perspective, is, to put it bluntly, absurd.  (Conservative commentator George Will made this point aptly, when he very sardonically suggested that perhaps in future legislation, Congress "might stipulate all the statutes and constitutional understandings that it does not intend the act to repeal or supersede.")  Here's how conservative constitutional studies fellow [Robert Levy, cited above] put it in testimony before the Senate Judiciary Committee: 

"A settled canon of statutory interpretation directs that specific provisions in a statute supersede general provisions -- lex specialis derogat legi generali. When FISA forbids 'electronic surveillance without a court order' while the AUMF permits 'necessary and appropriate force,' it is bizarre (emphasis added) to conclude that electronic surveillance without a court order is authorized." 

Conservative George Will satirically mocked it as ridiculous.  Conservative Levy called it  "Bizarre." The more liberal New Republic labeled it "absurd." 

Yet it is the exact Argument that Attorney General Alberto Gonzales has been repeatedly making to the Nation, and that the media has been duly repeating as if it is just one of two reasonable sides to the "debate."  

Listening to the coverage of this rather critical issue in the media -- where, again, it is often merely simplified down to some version or another of, “one side said the Executive Branch was authorized, the other side says it was not” -- doesn’t exactly shed much light on the issue.   Let alone one that's central to what our democracy is.  But, of course, a democracy is only as strong as the quality of its mainstream information.  And once again, the mainstream information has been poor.    cites, and further analysis. direct media  contact links

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