Rick, Russ, and Censure

As promised, I want to look at Shark and Shepherd blogger Rick Esenberg's Saturday Op-Ed written to provide response--or, more accurately, balance--to Russ Feingold's essay defending his call for President Bush's censure, which itself was a response to the Journal Sentinel editorial I wrote about here.

It isn't that I think Russ can't defend himself--I'm sure he could--but he's busy being a US Senator somewhere, and I'm sitting here trying to avoid housework and paper grading. And Rick's essay, which is about as clearly stated a case as any I've seen, misses some points and raises disturbing questions. Here's how he starts:

Sen. Russ Feingold wants to censure the president for authorizing the National Security Agency to conduct warrantless surveillance of communications between people in the United States and people abroad believed to be al-Qaida operatives. In a spasm of oversimplification, Feingold likes to call this "domestic" wiretapping.

In light of its rarity and the potential harm to national security during time of war, censure should be limited to the most clear and serious presidential abuses. This case isn't even close.

"Domestic" may be one side's spin, sure, but it is not inaccurate: The NSA is listening in on calls where at least one party is in the United States, even a US citizen. Domestic means in the United States. Moreover, I have not seen a good argument how censure poses harm to national security. It's one of those standard tropes (like, "don't criticize the president in wartime") that Bush supporters have been using for four years to shut up any opposition. It is dangerously close to Dick Cheney's observation from election season 2004 that electing John Kerry would have left us less safe somehow. I don't buy it.

The more serious argument is that the NSA program violates the requirements of the Foreign Intelligence Surveillance Act. Whether this is so is highly technical and turns on facts that have not been made public. Even if NSA surveillance is outside its terms, FISA contains a huge exception. Surveillance that is not conducted within its framework is permitted if "otherwise authorized by Congress."

Shortly after 9-11, Congress passed the Authorization for Use of Military Force [AUMF], stating that the president should use "all necessary and appropriate force" against international terrorism.

This is the old "AUMF" overrides FISA. First of all, I did a search of the FISA statute, and did not find the phrase Rick quotes. I'm not saying it's not there; I just couldn't find it with my eyes or the search tools I have available to me. I did, however, find this gem somewhere else: "the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted." Did you catch that? The law requires FISA be followed to intercept communications in the US. I think it is reasonable to look at that, and look at how blatantly the president has admitted to skirting the law, and see that there has been a serious violation.

In addition, the AUMF was indeed not intended by Congress to authorize violations of FISA. This is one of those "after-the-fact" excuses I noted here, and this notion, in fact, is specifically belied both by members of Congress and the administration's actions at the time it was passed. But Rick goes on, this time into the courts:

In Hamdi vs. Rumsfeld, a Supreme Court majority held that the Authorization for Use of Military Force allowed the detention of American citizens as enemy combatants, overriding another law that said this may not be done unless "otherwise authorized by Congress."

While the resolution says nothing about detentions (as it says nothing about surveillance), the court reasoned that detaining the enemy is a traditional incident of waging war and thus was included within the Congress' broad approval of the use of force.

This is a bit of spin, too, as the government actually lost that case--the majority opinion held that the US had to follow constitutional guidelines regarding the detention of US citizens captured in war. In addition, the AUMF explicitly states that the president's war powers, under the War Powers Resolution, are in force; however, "even the war power does not remove constitutional limitations safeguarding essential liberties," the Hamdi court noted. I'm pretty sure the Constitution says something about "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

After a digression about World War Two movies, Rick continues:

Even if we could conclude that the NSA program violates the terms of FISA, the inquiry as to its legality is not over. The Constitution makes the president the commander in chief of the armed forces. If that power includes the right to monitor communications between Americans and enemy agents abroad, then any attempt to limit that authority, including FISA, would be unconstitutional.

As for FISA's constitutionality, the federal government has had nearly 30 years to challenge it. In fact, for 25 of those 30 years, presidents--including Reagan and the first President Bush--not only did not challenge the law, but did not violate it, either. Still, if the current President Bush believes FISA unconstitutional, the right choice is not to violate the law, but to change or challenge it. That he chose to disregard it smacks not of concern for national security, but of arrogance. More from Rick:

[W]e know that some in Congress have been informed of the details, and few, if any, are calling for the program's suspension. There has been no serious attempt to pull its funding. In other words, even those who want to criticize the president for the program don't want him to stop.

Telling only "some" in Congress about the surveillance was itself a violation of the law, and Rick maybe does not remember that at least two of those told (and as few as eight, of 535, may have been informed) objected--Rep. Nancy Pelosi and Sen. Jay Rockefeller (more from Think Progress today). Those told about the program could say nothing--not to propose cutting its funding, not to speak out to the press--because it was classified. Rick is being disingenuous if he believes silence about the program before its revelation last December is evidence of complicity.

Finally, Rick writes,

Even if not required by law, why not get warrants anyway? It is hard to answer that because we don't know exactly what the NSA program, which is necessarily secret, entails. It might, for example, involve computer monitoring of large numbers of communications to which the traditional notions of probable cause are ill-suited.

This is very concerning to me, because, after a spirited (if wrong-headed) defense of what Bush is doing, Rick admits that we may not know what Bush is doing. If this is so, how can we defend it, unless we accept the doctrine that the executive is all-powerful, ineffable, and infallible? I refuse to do so. One of two things is true here; either the administration could have gotten warrants under FISA (99.99999% success rate, remember) and didn't; or, Bush is lying about the nature of the program when he tells us about the cell phones captured on the battlefield that have US numbers in them. Either way, Bush is pushing the bounds of what is acceptable.

In the end, Rick Esenberg misses a compelling part of Russ Feingold's argument that censure is necessary. Whether or not FISA is constitutional, whether or not a sympathetic Supreme Court eventually decides that Article II of the Constitution grants presidents more power than 220 years of history have seen, the president still deserves reprimand. I'll let Russ explain why:

Not only did the president break the law, he also actively misled Congress and Americans about his actions. Before the existence of this program was revealed, the president went out of his way in several speeches to assure the public that the government was getting court orders to wiretap Americans in the United States--something that he now admits was not the case. [. . .]

In this year's State of the Union address, the president implied that before he authorized the program, he couldn't have wiretapped terrorist suspects. That is simply untrue. Congress passed FISA in 1978 specifically to lay out the rules for wiretaps of terrorists and spies, and it has updated that law repeatedly since. FISA includes safeguards, which the president is ignoring, to protect the rights and freedoms of law-abiding Americans.

The president also has made a series of flawed legal and factual arguments to defend the program. He has claimed inherent executive powers that appear to have no bounds. [. . .] And he has said that past presidents have used the same authority and that federal courts have approved the exercise of that authority, when neither is true.

Rick didn't know that Feingold wrote that in his op-ed, as Rick didn't have it in front of him. But this is undeniable; while there is no great clip of Bush saying, "I did not authorize warrantless wiretaps of that woman, Ms. Lewinsky" to run over and over again on the news, there is a clear pattern of misleading the public--something he does regularly. If that does not deserve censure, I don't know what does.