Does the President Really Know Best?
OK, everyone who has studied the unitary executive theory of the presidency, raise your hand. Anyone? Anyone?
If you are not raising your hand, you're not alone. Only recently has the world received notice that President Bush's "I can do anything I want" approach to governance has a name: the unitary executive theory of the presidency. Not having heard of this concept, and thinking perhaps that I had missed something in Constitutional Law, I decided to survey a random sampling of attorneys about it. The group included civil practitioners, prosecutors, a federal judge, a former federal prosecutor who has a PhD as well as a JD, defense attorneys and a US magistrate. The precise question was: "When did you first hear about the unitary executive theory of the presidency?" Most said, "The past few weeks." But my favorite was, "A few seconds ago, when you asked about it." All agreed that the term does not appear in the US Constitution and that, the last time they checked, we still had three branches of government.
Discussion of this "theory" has been prompted, of course, by President Bush's recent confession to a crime: repeatedly authorizing the National Security Agency (NSA) to intercept domestic electronic communications for foreign intelligence purposes without a court order, in violation of the Foreign Intelligence Surveillance Act. FISA contains no exception for the President, but Bush claims his action is legal because: (1) Congress endorsed it in its September 18, 2001, authorization to use military force in response to Al Qaeda's September 11 attacks, and (2) he has inherent power as Chief Executive to act as he deems necessary in wartime. Many scholars, including Georgetown University's David Cole and former New York State Congressional Representative Elizabeth Holtzman, have thoroughly debunked these arguments.
You don't have to be a constitutional scholar to know that Bush's legal justifications are weak. You merely have to consider the Administration's duplicitous conduct. The Bush team has deliberately concealed this program, not only from the public and Congress but, most damning of all, from the very agency that is responsible for executing the laws of this country: the Justice Department. It has been widely reported that even Bush appointees, such as former Assistant Attorney General James Comey, and possibly former Attorney General John Ashcroft, objected to the NSA's wide-ranging warrantless spying. After twenty years as a federal prosecutor, I am absolutely certain that the vast majority of career attorneys at the Justice Department and criminal prosecutors from US Attorneys' offices around the country, as well as federal law enforcement agents, would have refused to participate knowingly in this program. Bush and his coterie knew that their legal arguments were weak and intellectually dishonest, if not ludicrous, so rather than making their case honestly, even to their own people, they avoided dissent by acting in secret and affirmatively misleading the entire country. Using a tragically familiar modus operandi, Bush has carried out his unlawful spying scheme by acting not as a unitary executive (whatever that is) but as a solitary executive--as if the President Knows Best.
To understand the extent and complexity of Bush's deception with regard to the NSA's warrantless surveillance--not to mention frightening consequences--consider some of the practicalities of FISA, both before and after it was changed by the USA Patriot Act.
As anyone who took high school civics knows, the government must get a warrant before conducting electronic surveillance on people within the United States. But before the September 11 attacks, few citizens knew that law enforcement had to follow different procedures to get that warrant, depending on the investigative purpose. If the purpose was chiefly to aid a criminal investigation, such as in a drug or bribery case, the agents had to get what was called a Title III warrant from the US District Court. If the object was primarily to get foreign intelligence on people within the United States, regardless of whether they were communicating with someone in or out of the country, agents had to go to a secret court called the FISA court.
Under no circumstances could an agency electronically eavesdrop on a person within the United States without such a warrant, but if people were outside the country, the NSA could electronically intrude on their communications--phone calls, e-mails or faxes--without getting any court authorization. So if the whole communication was outside the United States, NSA could spy to its heart's content.
If a criminal case was at stake, the FBI or whichever agency was involved needed a Title III criminal warrant; and if it was a foreign intelligence case, the FBI needed a FISA warrant. What was the difference between the two? Other than the difference in purpose--criminal investigation versus foreign intelligence--the main differences were threefold. First, the amount of proof needed to get a FISA warrant was less. Second, with a FISA warrant, the person surveilled rarely could seek judicial review because he would normally have had no way of finding out that it had even happened. The third difference flowed from the first two: Because of the relaxed standard of proof and the unavailability of review, foreign intelligence agents were not allowed to share their information with criminal agents, even if they were in the same agency. That barrier between criminal and foreign intelligence agents was called the FISA wall.
After the 9/11 attacks, however, as part of its push for the Patriot Act, Administration representatives, mainly from the Justice Department, proposed numerous changes to the FISA law that they argued were necessary due to both technological and societal developments since 1978. They wanted to break down the FISA wall to allow for greater sharing of information in order to avoid the numerous communication snafus that may have prevented discovery of the plans for the 9/11 attacks. Ultimately, the Administration received most of its desired changes. Break down the FISA wall? You got it. Roving wiretaps? You got it. Administrative subpoenas to libraries? You got it.
And that was just the first round. Since October 2001, the Administration has obtained passage of three rounds of additional changes to FISA. All the requested changes have led to considerable public debate about the threat to constitutional protections posed by relaxing the rules for getting electronic surveillance warrants as well as the increase in tools available to law enforcement. Nevertheless, for the most part, Congress has acceded to whatever requests for changes to FISA the Bush Administration has made.
At no time during this four-year debate about security and civil liberties, despite well-established Congressional procedures for discussions that involve classified material, has the Bush Administration advised Congress in any meaningful way that it was in ongoing violation of FISA; nor has it ever formally sought to amend the law to accommodate the sorts of technological advances that it now cites as the very reason for its secret program. In other words, the Administration has conducted a prolonged charade during which it has pretended to participate in a democratic process of amending and enacting legislation, while secretly and monumentally violating the law that was under consideration.
This charade was not merely for the benefit of the public and Congress but also for the benefit of the thousands of Administration employees who are charged with enforcing the rule of law. When Bush announced famously on April 20, 2004, "There are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires--a wiretap requires a court order. Nothing has changed, by the way," the vast majority of people at the Justice Department most likely believed that to be true. DOJ has an entire website devoted to internal and external propaganda about the Administration's commitment to civil liberties. Prominently displayed on the website with the title "The Patriot Act: Preserving Life and Liberty" is a smiling photo of Attorney General Alberto Gonzales and the following quote: "We are waging a war...each day in a way that values and protects the civil liberties and the constitutional freedoms that make our Nation so special."
What makes Gonzales so special is that as the nation's chief law enforcement officer, he has been entirely indifferent to the rule of law. He has been complicit in the activities of an Administration that has marginalized its career employees to hide its activities. Note that the only people who have thus far publicly defended the legality of the NSA eavesdropping scheme are: President Bush, Vice President Cheney, Secretary of State Condoleezza Rice and former NSA Director Michael Hayden--all non-lawyers whose self-interest is obvious; as well as Gonzales, Bush's longtime friend and former White House Counsel, and Assistant Attorney General William Moschella, a Bush appointee who has been a lawyer for fewer than ten years and has never actually practiced law. We should not expect to hear support for the warrantless NSA spying from any career criminal prosecutors.
This illegal surveillance is a prosecutor's nightmare. As Hayden testified before the Senate Intelligence Committee in October 2002, the National Security Agency turns over legally obtained evidence to the FBI in a way that prevents FBI agents from knowing its source or sources. If the NSA hides the source of its legally obtained evidence, it certainly also hides the source of any illegally obtained evidence it may be turning over. Neither illegally obtained evidence nor evidence gleaned from it can be used in a criminal prosecution. Consequently, an untold number of successful prosecutions are now jeopardized by the possible use of tainted evidence. Such challenges have already begun in the case of Lyman Faris, who is serving a twenty-year sentence for conspiring to blow up the Brooklyn Bridge. In other words, the government's reckless adoption of an illegal surveillance program could actually have the effect of undermining the very prosecutions it claims as its successes in the "war on terror." The Bush Administration argues that this sort of secret spying is what we have to do for our own security. Indeed, they suggest that if the program had existed prior to September 11, those attacks might have been prevented because they would have "caught" two hijackers who were making calls to Al Qaeda from San Diego. In legal terms, this claim would be called the defense of "necessity," but in lay terms this claim would be called "a big fat lie."
The hijackers to whom Bush and his advisers are referring are Khalid al-Midhair and Nawaf al-Hamzi. It is astounding that Bush should cite them in support of the illegal spying program, because the NSA knew about these two men and their relationship to Al Qaeda as early as 2000 as a result of a legal wiretap they had on a safe house in Yemen. But they never bothered to place them on a watch list or provide detailed information about them to the FBI or the CIA. NSA's Michael Hayden said his staff failed to provide the information to other agencies because they didn't appreciate its significance.
The problem at that time, as the 9/11 commission and so many other investigative bodies have found, was failure to communicate among the agencies, or even within the agencies. The NSA was unable to recognize the importance of its own information because it didn't know what the other agencies knew, and it was institutionally incapable of sharing even legally obtained information because it was operating as a lone wolf. Ironically, in the hands of President Bush, the NSA has effectively become even more isolated--essentially an outlaw. And it still does not know everything that the other agencies know, so it has no more capability of recognizing the importance of what it learns now than it did before. So it is difficult to imagine how it can now possibly use its illegally obtained information to prevent attacks.
It appears, then, that President Bush, using his wholly fabricated unitary theory of the executive, has clandestinely managed to marginalize his own agencies and eviscerate many of the information-sharing benefits of his own Patriot Act. When will we, as a country, finally stop thinking that the President Knows Best?