His claim rested on two contradictory arguments. First, he said that warrantless wiretaps were authorized in the resolution enacted three days after September 11, which said that the president could “use all necessary and appropriate force” to combat al-Qaeda. But the administration also argued that it didn’t need authorization because of the inherent powers of the commander in chief. Former Senate Majority Leader Tom Daschle wrote that the administration had asked for a much broader resolution on the use of force than the one Congress approved. At the last minute the White House sought to have the resolution also include actions “in the United States” but was turned down.
One problem with the President’s claims of extraordinary powers as commander in chief is that the “war on terror” is by definition an open-ended one, with no time limit on the president’s powers, as Bush interprets them, to do virtually whatever he wants in order to conduct that war. There are undefined limits on how far the legislature can go in instructing the president on how to conduct a war; clearly it cannot tell him how to deploy combat troops. But during the Vietnam War, Congress used the power of the purse, voting to cut off funds. The Nixon administration didn’t argue that Congress had no power to do so.
There is no way of knowing how many other laws already on the books are being reinterpreted by Bush, as he’s done in the case of the NSA wiretapping program. The Foreign Intelligence Surveillance Act, or FISA, passed in 1978 after the Supreme Court had unanimously rejected as illegal Richard Nixon’s domestic wiretapping, set forth what it said were the “exclusive means” by which an administration could conduct surveillance on Americans. The FISA law set up a special, secret court that could grant the government permission to wiretap American citizens after a showing of probable cause. One of the administration’s justifications for initiating a wiretapping program outside the FISA law is that taps on potential terrorists must be initiated speedily; but the FISA law gives the executive three days to conduct a warrantless tap in an emergency and fifteen days if there’s been a declaration of war. Gonzales complains that the law is too burdensome, since the attorney general still has to sign off on emergency taps and that they have to meet FISA standards. (A Republican senator, upon being told these complaints, said, “So what’s the problem?”) But the FISA law has been amended twice since it was enacted and the administration has never specifically and clearly asked Congress to revise the law to take account of changed circumstances.
The administration’s wiretapping program appears to violate the Fourth Amendment’s guarantee that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause….”3 The original impetus for the Bush program reportedly came from General Michael V. Hayden, then head of the National Security Agency, which collects information in the name of national security, and Bush’s nominee to head the CIA. Hayden told a receptive White House that the NSA counsel had said the program was legal. The government claims that if a member of al-Qaeda, or of a group “supportive of” al-Qaeda, calls or e-mails someone in the United States, or if someone in the US initiates the conversation, the government, which could already tap the suspected terrorist, can now tap the US resident as well. This raised the question whether that US citizen’s other calls would be tapped.
In a press briefing given at the White House by Gonzales and Hayden on January 19 this year, Gonzales emphasized that “one party to the communication has to be outside the United States” and insisted there has to be “a reasonable basis” for concluding that one party to the communication is affiliated with or “supportive of” al-Qaeda, an extremely vague standard. And the administration is now making that decision, not the FISA court. Gonzales, moreover, has told congressional committees that he couldn’t rule out that the President has the authority to wiretap purely domestic calls. Asked why the administration didn’t go to Congress for authorization to wiretap domestic calls in terrorism cases without seeking a warrant, Gonzales replied: “We have had discussions with Congress in the past—certain members of Congress—as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.” In other words, having been told that Congress was unlikely to authorize the warrantless wiretaps of domestic calls, the administration went ahead and did the tapping.
The Bush administration’s reaction to the revelations about the wiretapping program has been to attack the leaks. In his statement acknowledging the wiretapping program, Bush said, “The fact that we’re discussing this program is helping the enemy.” In an attempt to limit congressional oversight, the administration tried to restrict the number of members of Congress it would brief on such matters. According to a presidential directive issued quietly after September 11, officials were to discuss highly classified information with only the Republican chairman and the ranking Democrat on the Senate and House Intelligence Committees—committees that were established to conduct oversight on intelligence activities following the CIA scandals in the mid-Seventies—as well as the Republican and Democratic leaders of each chamber (a total of eight people) and not with the full intelligence committees.
Under the new rules, the members of this small group of people weren’t permitted to discuss the program with other members of the intelligence committees, or with their own staffs. It was for the administration to decide which intelligence matters were too sensitive to discuss with the entire intelligence committees. One problem with this White House–imposed arrangement was that just as members of other congressional committees become cozy with the government agencies they are supposed to oversee, the intelligence committee heads—with the notable exception of Democratic Senator Jay Rockefeller, of West Virginia—are known to be close to the intelligence agencies. In July 2003, Rockefeller sent Cheney a handwritten letter saying that the restrictions on briefings “raise profound oversight issues.”
Rockefeller also wrote that the wiretapping program recalled the highly intrusive Pentagon Total Information Awareness program headed by John Poindexter, which Congress voted to abolish. The resemblance, he wrote, “exacerbat[ed] my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.” (Rockefeller released the statement following the Times‘s disclosure.) Earlier this year, Chuck Hagel and Olympia Snowe, Republican of Maine, threatened to vote with the Democrats for an investigation of the wiretapping program unless the full committee was briefed on it. In early March, on the eve of a scheduled vote on the matter, Cheney was called to a meeting with some committee Republicans in S207, the committee’s highly secured room in the Capitol. The Republicans, including Snowe, sharply criticized Cheney for the administration’s attempts to prevent other committee members from being briefed about the program.
Cheney had to report to the White House that its plan to shut out all but the top committee members was no longer feasible. But, working with Pat Roberts, chairman of the Senate Intelligence Committee, and Senate Majority Leader Bill Frist, the administration was able to limit the additional committee members to be briefed to four Republicans and three Democrats, still leaving most of the intelligence committee members, not to mention other elected officials, in the dark. On the eve of Hayden’s confirmation hearings, Roberts, facing a public revolt by committee members of both parties, agreed that all of the committee members should be briefed on the surveillance programs. This was also a way of preventing committee members who hadn’t been briefed from asking awkward questions in public. (This led to the tepid questioning of Hayden in his public confirmation hearings.) Despite the briefing, in the public hearing Snowe said,
the Congress was really never really consulted or informed in the manner that we could truly perform our oversight role as co-equal branches of government, not to mention—I happen to believe—required by law.
In March, after the Senate Intelligence Committee declined to hold hearings on the matter, Arlen Specter, Republican of Pennsylvania, convened four days of hearings before the Judiciary Committee. But Specter concluded that Gonzales’s testimony was too vague to be informative. In late April he threatened to cut off NSA funds for the wiretapping program if the administration didn’t reveal more about it. Asked by a reporter why he didn’t call Gonzales back to appear before his committee, Specter replied, “Because he won’t tell us anything.” The administration, apparently on the orders of the White House, shut down a Justice Department investigation into the wiretapping program.
Bush’s nomination of Hayden to be the next CIA director set off an undoubtedly greater clamor than the White House expected over his role in the wiretapping program and his strenuous public defense of it, but the White House claimed it welcomed the fight. And then another clamor was set off by the revelation by USA Todaythat the NSA was collecting the phone records of tens of millions of Americans from major telephone companies. In a statement to the press, Bush said the NSA wasn’t listening to the calls but was only tracing the pattern of contacts they revealed. But it would be easy for the NSA or another agency to correlate the numbers with the names of the callers. In any event, the program is quite possibly illegal. (Specter is to hold hearings.) These disclosures led some lawmakers to wonder what else they hadn’t been told that the administration was doing in the name of national security.
A big congressional fight over the wiretapping program would fit neatly into Karl Rove’s strategy, declared earlier this year to a meeting of the Republican National Committee, of cynically making the issue of national security central to the 2006 election, as he did in 2002. “Republicans,” he said, “have a post-9/11 worldview and many Democrats have a pre-9/11 worldview.” With its penchant for propagandistic titles (the “Patriot Act”), the administration calls the warrantless wiretapping program the “terrorist surveillance” program, and it imputes to its opponents the view that terrorists should not be wiretapped. But of course that is not the issue: most of the critics on Capitol Hill are simply arguing that wiretapping programs should be subject to the law. Hagel says, “You cannot have one branch of government make the decision on whose rights would be violated. That’s the very basis of having three co-equal branches of government.”
As for the judicial branch, the Bush administration, like previous administrations, has tried to appoint judges compatible with the President’s views. But Bush has been strikingly successful at putting extreme conservatives on the bench, and probably now has four votes on the Supreme Court for his “unitary executive” rationale for executive authority over what the other branches do. His administration has several times told the Supreme Court that it should not hear the cases of detainees. Also by his appointments and by exerting pressure Bush has bent the supposedly independent regulatory agencies (the EPA, SEC, FDA, etc.) closer to his political views—in his case, pro-deregulation—than any president before him.4 The explicit rationale for these agencies is that they were to be independent of both the executive and Congress. There have already been two federal court rulings charging the EPA with defying federal environmental law.
As for the press, Justice Department officials have threatened to prosecute not only officials who leak classified information, but also anyone else who simply receives classified information, whether they disclose it or not. Gonzales has suggested that journalists might be prosecuted for disclosing classified information (for example, The New York Times reporters for revealing the warrantless wiretapping program). On May 16, ABC News reported on its Web site that the FBI had stepped up government efforts to seek reporters’ phone records in investigations of leaks. Many reporters and editors find it ominous that the administration prosecuted two lobbyists for AIPAC, the American Israel Public Affairs Committee, for receiving such information (as well as passing it on to Israel), and that, in early March, the FBI demanded the papers of the late investigative reporter Jack Anderson.
Cheney and his chief of staff, David Addington, formerly his counsel, are understood by most informed observers to be mainly responsible for the expansive interpretations of the president’s powers, as well as the unprecedented secrecy with which the administration conducts public affairs. According to The New York Times, after September 11 Cheney and Addington pushed for the wiretapping of domestic calls. A Republican lobbyist I talked to told me that the administration’s attitude on various issues is simple: “It’s we just want it our way and we don’t want to be bothered by talking to other people about it.”
Some Republican observers suggest that Cheney is living in a time warp, reacting to what he saw as congressional encroachment (including FISA) on the president’s powers during the time that he served in the Ford White House and as a minority member of a Democratic Congress. Despite rumors of a decline in his standing with Bush, Cheney remains the most powerful vice-president in American history, with an octopus-like reach into many parts of the government. He has placed his own people in each of the national security agencies—the Departments of Defense and State as well as the CIA and the National Security Council. (Until she recently took a maternity leave, his daughter Elizabeth was principal deputy assistant secretary of state for the Near East, a position that does not require Senate confirmation and from which people on Capitol Hill saw her as effectively in charge of the State Department’s Middle East bureau.) Cheney installed Porter Goss in the CIA, with orders to root out people who leaked information inconvenient to the administration. It’s difficult, however, to know much about what Cheney is doing because his office operates in such secrecy that a reporter friend of mine refers to it as a “black hole.”
In Bush, Cheney has had a very receptive listener. Bush’s own overweening attitude toward the presidency is clear from his behavior. He bristles at being challenged. He told Bob Woodward, “I do not need to explain why I say things. That’s the interesting thing about being the president. Maybe somebody needs to explain to me why they say something, but I don’t feel I owe anybody an explanation.” His comment, “I’m the decider,” about not firing Rumsfeld, is in fact a phrase he has used often.
Why have the members of Congress been so timorous in the face of the steady encroachment on their constitutional power by the executive branch? Conversations with many people in or close to Congress produced several reasons. Most members of Congress don’t think in broad constitutional terms; their chief preoccupations are raising money and getting reelected. Their conversations with their constituents are about the more practical issues on voters’ minds: the prices of gasoline, prescription drugs, and college tuition. Or about voters’ increasing discontent with the Iraq war.
Republicans know that the President’s deepening unpopularity might hurt them in the autumn elections; but, they point out, he’s still a good fund-raiser and they need his help. Moreover, the Republicans are more hierarchical than the Democrats, more reverential toward their own party’s president; it’s unimaginable that Republicans would be as openly critical of Bush as the Democrats were of Jimmy Carter and Bill Clinton. Republicans are more disciplined about delivering their party’s “talking points” to the public. Republican fund-raising is done more from the top than is the case with Democrats, and there’s always the implicit threat that if a Republican isn’t loyal to the president, the flow of money to their campaigns might be cut off. A Republican opponent can challenge an incumbent in a primary, in which not many people vote. Here Arlen Specter has shown unusual courage. He barely survived a conservative challenge in the primary election in 2004 (though Bush supported him), and then had to beat back a conservative attempt to remove him as chairman of the Senate Judiciary Committee because of his views in favor of abortion rights. He survived by promising not to let his pro-choice views hold up the judicial nominations before the committee. Specter told me, “What I worry about most is the restrictions of Congress’s constitutional authority, which the Congress doesn’t resist.”
Bush’s declining popularity can occasionally impel Republicans to try to seem independent of him—as, say, on the issue of Dubai being awarded a contract to administer US ports; after all the administration’s talk about security, this arrangement sounded outrageous in the American heartland, and members of Congress rushed to kill it. But the Republican legislators have also become convinced, in the words of one Republican senator, “We’ve got to hang with the president because if you start splitting with him or say the president has been abusing power we’ll all go down.” Karl Rove has recently been arguing along these lines to congressional Republicans. In the end, a Republican lobbyist told me, Republican politicians feel that Bush is “still their guy.” The fierce partisanship on Capitol Hill also blocks serious discussion of the issue of unlimited executive power: many Republicans have concluded that the Democrats are exploiting such issues for partisan purposes and have dug in against them. On May 11, at a regular weekly luncheon of about twenty conservative senators, Senator Roberts denounced criticism of Bush’s surveillance and data-collecting programs as “dangerous” and “insulting” to the President and charged the Democrats with treating national security as a political issue. Members of Congress who are protective of their institution and capable of looking beyond their parochial concerns—and who might have objected to Bush’s encroachments on the legislative branch—are largely gone.
From the time of the vote on the Iraq war, many Democrats have been reluctant to be caught on the “wrong side” of “national security” issues, even those blatantly cooked up by the White House. It usually requires a strong public reaction, as there was on the subject of torture, for Congress to make a move against the President’s actions. A Republican senator told me, “There’s a feeling on the Hill that the public doesn’t care about it, that it’s willing to give up liberties in order to defeat the terrorists.” Some of the proposals offered on Capitol Hill for regulating the NSA wiretaps amount to little regulation at all.
At the center of the current conflict over the Constitution is a president who surrounds himself with proven loyalists, who is not interested in complexities, and who is averse to debate and intolerant of dissenters within his administration and elsewhere. (A prominent Washington Republican who had raised a lot of money for Bush was dropped from the Christmas party list after he said something mildly critical of the President.) A Republican lobbyist close to the White House described to me what he called the Cult of Bush: “This group is all about loyalty and the definition of loyalty extends to policy-making, politics, and to the execution of policy—and to the regulatory agencies.” The result, this man said, is that the people in the agencies, including the regulatory agencies, “become robotrons and just do what they’re told. There’s no dialogue.”
The President’s recent political weakness hasn’t caused the White House to back away from its claims of extraordinary presidential power. The Republican lobbyist Vin Weber says, “I think they’re keenly aware of the fact that they’re politically weakened, but that’s not the same thing as the institution of the presidency being damaged.” People with very disparate political views, such as Grover Norquist and Dianne Feinstein, worry about the long-term implications of Bush’s power grab. Norquist said, “These are all the powers that you don’t want Hillary Clinton to have.” Feinstein says, “I think it’s very dangerous because other presidents will come along and this sets a precedent for them.” Therefore, she says, “it’s very important that Congress grapple with and make decisions about what our policies should be on torture, rendition, detainees, and wiretapping lest Bush’s claimed right to set the policies, or his policies themselves, become a precedent for future presidents.”
James Madison wrote in Federalist Paper No. 47:
The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many…may justly be pronounced the very definition of tyranny.
That extraordinary powers have, under Bush, been accumulated in the “same hands” is now undeniable. For the first time in more than thirty years, and to a greater extent than even then, our constitutional form of government is in jeopardy.
—May 24, 2006
For other constitutional arguments against the wiretapping program see "On NSA Spying: A Letter to Congress," signed by David Cole et al., The New York Review, February 9, 2006. See also a second letter at www.law.duke.edu/publiclaw.pdf.↩
‘Power Grab’ October 19, 2006
For other constitutional arguments against the wiretapping program see “On NSA Spying: A Letter to Congress,” signed by David Cole et al., The New York Review, February 9, 2006. See also a second letter at www.law.duke.edu/publiclaw.pdf.↩