President Bush's response to disillusioned commentator Harry Taylor, on April 6, 2006, addressing the clandestine NSA surveillance program in direct violation of FISA;

I thought that made sense, so long as it was constitutional. Now, you may not agree with the constitutional assessment given to me by lawyers — and we’ve got plenty of them in Washington — but they made this assessment that it was constitutional for me to make that decision. 

The President is correct -- love them or hate them -- who better to assess the legal questions and constitutional aspects than lawyers?

Here is the full text of the American Bar Association's formal request that:

The President abide by the limitations which the Constitution imposes on a president under our system of checks and balances and respect the essential roles of the Congress and the judicial branch in ensuring that our national security is protected in a manner consistent with constitutional guarantees.

Read the first six main points of the ABA's request, that make the case fairly strongly, and unequivocally.

Cato Institute constitutional studies fellow and republican Robert Levy,  in testimony before the Senate Judiciary Committee, frames the issues as a rhetorical question:

Further, the attorney general asserts that the AUMF and the commander-in-chief power are sufficient to justify the NSA program. He, or his predecessor, made similar claims for military tribunals without congressional authorization, secret CIA prisons, indefinite detention of U.S. citizens, enemy combatant declarations without hearings as required by the Geneva Conventions,  and interrogation techniques that may have violated our treaty commitments banning torture. Is any of those activities outside the president's commander-in-chief and AUMF powers? If not, what are the bounds, if any, that constrain the president's unilateral wartime authority?"

The Cato Institute quotes Levy further:

[Bush] argues that, but for his ability to order such surveillance, he would be severely handicapped in the war on terror," Levy says. "That's plainly an overstatement. First, the president has expansive power outside the United States. Second, the Foreign Intelligence Surveillance Act (FISA), the PATRIOT Act, and other statutes have given him broad leeway within the United States. Third, he has considerable, although not plenary, inherent authority under his power as commander-in-chief. But if Congress has exercised its own authority and expressly prohibited what the president has undertaken, the president's is bound by the duly enacted statute.

While the Judiciary Committee needed to, and was able, to find the occasional lawyer who backed the program (or else how could they consider the issue without hearing someone to propose counter arguments?),  Yale Law School Dean Howard Koh was much blunter in his testimony before the Senate Judiciary Committee than Levy. Levy simply and unambiguously concluded that under the Constitution and FISA, the program is incotrovertibly invalid.  Koh was a bit more technically accurate, calling the program "blatantly illegal."

A Letter from Constitutional Scholar Lawrence Tribe, also lays out the case.  The House Judiciary Democrats' report that it was incorporated into, is also fairly clear cut.  Another example is found here.  And, lastly, this testimony before the House, even if not true, provides a compelling example of why these are not abstract questions.  Carrying this critical latter point further:

As a hypothetical, if the NSA wiretap program has no oversight, no real record, and almost no disclosure, what would have prevented the current party in executive power from having eavesdropped on their political opponents during the 2004 election, for instance? This is not to even remotely suggest that this happened. But this example is used to raise the critical point that, with a clandestine, unchecked program, there is really no way to know, that, or anything in terms of the programs ultimate usage, regardless of its original intent.

This is why, of course, our founding fathers set up the Constitution the way that they did. And that way does not mean that in times of war, as Commander in Chief, the executive branch gets to not only act quasi legislatively in the absence of specific legislation, but gets to pick and choose which laws of Congress already passed are valid, and which are not, thereby rendering the entire separation of powers concept null and void.

Glenn Greenwald, one of the nation's leading first amendment experts, and the author of "How Would a Patriot Act," makes a compelling case that it was precisely this type of potential usurpation of power that our founding fathers sought to avoid. As Greenwald puts it:  

Notwithstanding those threats, the Founders, in creating an Executive branch, sought first and foremost to ensure that the President could never wield unchecked powers which would exist above and separate from Congressionally enacted laws.

Another interesting analysis is found here.  Numerous other conservatives have also spoken out on the issue, and have reached the same conclusions.  And syndicated, conservative columnist George Will satirized the Administration's legal speciousness aptly, when he wrote:                

The next time a president asks Congress to pass something akin to what Congress passed on Sept. 14, 2001 -- the Authorization for Use of Military Force (AUMF) -- the resulting legislation might be longer than Proust's "Remembrance of Things Past." Congress, remembering what is happening today, might stipulate all the statutes and constitutional understandings that it does not intend the act to repeal or supersede.

Just to present an argument on the other side, that, in essence, the earth is flat after all, see here for a debate on the issue between Levy and one of those far right wing "administration apologist" lawyers (David B. Rivkin, Jr., who, like Levy, is a Federalist Society member).  Of course, anyone can assert anything they want about the Constitution, including that if the President decides that aborigines from Guadalupe present a threat, and only his administration is equipped to deal with it (or only his administration is equipped to deal with the rather grave al-Qaeda threat (a highly questionable claim in its own right)), that the next Presidential election shall be shelved as a matter of "national security."  Why, that is absurd, you say? Well, who makes that determination?  The Constitution was already set up to answer that question. The people of the United States of America make that determination, through their duly elected representatives to Congress. 

Consider all of Rivkin's points, in light of the above argument, and it becomes fairly apparent that the only line to draw is the precise line that our founders drew when they set up the Constitution in the first place.  All of Rivkin's arguments, all of the administration's arguments, all arguments of all kinds, in favor of the administration's assertion, apply equally to any call that the executive branch would then make, regardless of the laws that were passed or that are passed by Congress.  And this is simply the opposite of the way that the Constitution was drawn up. In fact, it is one of the precise reasons that the Constitution was drawn up in the first place, to prevent exactly this type, as Greenwald puts it, of unchecked presidential power which would exist above and separate from Congressionally enacted laws.  In essence, the bottom line is, and remains, that:

[The Article II, Section 3] 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."  And it would go to the very heart of our democracy, as the establishment of these separation of powers clauses, was the most fundamental basis for the establishment of our Constitution in the first place.

Again, the line has already clearly been drawn. By the Constitution itself. The current administration is attempting to redraw it, in a manner that is very different than our founding fathers intended, and which has served us well for over 200 years. Many things must change over time. But our founding document's restrictions upon unchecked powers, and the clear separation of powers that it was set up to create, should be among the very last of them.  Not the first. For to change this, will surely, over time, bring a flood of changes to the very essence of our democracy, the first signs of which we are already beginning to see.

(For further reading on the subject, see:  constitutional loop. administration's argument. congressional research brief. Also see Glenn Greenwald's excellent blog, which, among several other blogs and  sources, has covered this subject extensively.  The same, unfortunately, can not be said of our national media.  But that media, and, in effect, America, are starting to see the results even as it continues to engage in that very same poor coverage.   Nor is this an aberration. For the classic case of standard media coverage, regarding the 2004 presidential election's seminal issue, for example, see here).

 

 

(note; this article was first published in April, 2006,and was updated May 23, 2006. Copyright2006Pressthenews.com, all rights reserved)