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Alito and the Wiretaps

I have to complain -- I think the left blogosphere generally is going too easy on Bush on the domestic eavesdropping. I keep seeing it referred to -- for example, in Juliette Kayem"s fine post here -- as a violation of a "statutory prohibition," implying that what Bush violated was the Foreign Intelligence Surveillance Act (FISA).

But it was more than that. FISA isn’t the law that prohibits domestic surveillance without a warrant. It’s the Fourth Amendment to the Constitution that does that. FISA is simply the structure by which we accomodate the need for quick turnaround and total secrecy in foreign intelligence-gathering to the Fourth Amendment protection against "unreasonable" domestic searches and requirement of a warrant. To operate outside of FISA is simply and directly to contravene the letter of the Fourth Amendment.

We’re told that the president obtained a "classified" legal opinion claiming that some combination of the Commander-in-Chief power and the congressional resolution authorizing use of force after 9/11 allowed him to do so. If this classified John Yoo special gives the president the authority to contravene the Fourth Amendment, then the same presumably applies to the First, the Second, the Eighth, the 22d, etc.

This is not complicated law. Two days before the Watergate break-in in 1972, the Supreme Court ruled 8-0 in the Keith case that, "The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate." The Nixon administration argument rejected in Keith was quite similar to the Bush argument: that a threat to national security existed (in this case, posed by the White Panther party, whose leader found a more effective means of subversion later by becoming the manager of the Detroit proto-punk band MC5) and vague language in a crime control statute (since superseded by FISA) gave the President the authority to conduct warrantless surveillance. (Justice Rehnquist did not participate in the case because he had been part of the Nixon team crafting the rejected argument.) Keith does not deal with foreign threats, but the fact that a foreign threat may require domestic surveillance is exactly why FISA was enacted. (An interesting history of the case, which involves many other questions as well as one of the great appelate judges of modern times, Damon Keith, can be found here.)

I did mention Alito, which is probably why you’ve read this far. Here’s where Alito fits in: My brother-in-law, an actual attorney, called my attention to another case in the same line as Keith: Mitchell v. Forsyth. This case also flows from Nixon-era wiretapping, but wasn’t decided until 1985. It’s mainly relevant to the question of executive-branch immunity. The Court found that Attorney General Mitchell enjoyed qualified immunity from lawsuits or prosecution for the wiretaps, but only because the constitutional issue had not been clear at the time of the wiretaps, when Keith had not yet been decided

The Reagan administration argued for much more, that the attorney general should have absolute immunity whenever he was performing a national security function. This sounds similar to the Yoo theory that the president can do anything whenever he puts on his special "commander-in-chief" hat. The Court rejected that argument, finding that "Petitioner [the government] points to no historical or common-law basis for absolute immunity for officers carrying out tasks essential to national security."

My brother-in-law noted that the case identifies the lawyers involved as follows: "Deputy Solicitor General Bator argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Samuel A. Alito, Jr., Barbara L. Herwig, Gorden W. Daiger, and Larry L. Gregg." Given that Alito is the first working lawyer listed -- as opposed to SG, Deputy SG, AAG -- and the others are not in alphabetical order, it’s probably a good guess that he drafted the brief arguing for absolute immunity.

Alito’s views of executive power should be a major, major topic at the hearings.

Posted by Mark Schmitt on December 19, 2005 | Permalink

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Comments

I deeply dislike all Chicken Little comments, and I am impatient with the inexactitude of "fascist" and "Nazi" used as general expressions of opprobrium. And that is why I wish this week I did not keep thinking of Hitler's use of Article 48, the so-called emergency clause to safeguard to public safety, to abrogate what was left of the Weimar Republic (and history has been happy to blame the Weimar Republic for its demise).

rhs

Posted by: | Dec 19, 2005 4:34:36 PM

Well, is there any evidence that this is Alito's personal view? During the Jones litigation, Clinton's team (and not just his 'private' lawyers IIRC) argued that POTUS was not subject to litigation while in office for actions taken prior to assuming office. Would those officials be expected to defend that argument as their own opinion?

Posted by: otto | Dec 19, 2005 5:38:46 PM

Yes. If one of "those officials" was later nominated for the SC, it would be entirely appropriate to establish for the public record whether the position in the brief represents their own professional opinion about the scope of executive power. As Mark says, these are fundamental matters that impact the health of the republic. We have a right to know.

Posted by: fnook | Dec 19, 2005 8:29:38 PM

Mark,

You're right that this is a big deal--to me, it's more significant than any other accusation against the Bush administration.

I agree that FISA implements a constitutional principle. Other aspects of the Constitution have been violated by this administration and by many of its predecessors. However, violating a criminal statute is different from acting against the Constitution; it requires a different response.

If a president violates the Constitution, a court should strike down his policy and order a remedy. If he lies, the people should weigh his mendacity at the next election. If he violates international law, the US should be held accountable, and we Americans should strongly express our displeasure. In other words, all of these presidential misbehaviors are serious, but they can be addressed through the normal mechanisms of constitutional democracy and diplomacy (debates, votes, lawsuits, UN resolutions). In each case, it is ultimately citizens who must respond. One of the reasons that I haven't welcomed criminal investigations of the Bush administration is that they substitute for citizen action.

However, to violate a US statute is different. Statutes are not vague, like constitutional principles. They do not apply to nations or governments. They clearly assign responsibility to individuals. You either violate a statute or you don't. If you happen to be the president when you break a law, then you must be impeached before you can be indicted. That is why the impeachment clause talks of "high crimes and misdemeanors."

I don't think it's possible to tell without a full investigation whether the domestic wiretaps violated FISA. There is also some debate about whether FISA was constitutional in its limitation on the president's powers. If the wiretaps did violate FISA, and if FISA is constitutional, then the wiretaps were criminal. That is different from simply violating the Fourth Amendment.

Powerful people should be afraid to do things that are defined as felonies, even when they act in secret. If they break clear laws with impunity, then we have no hope of controlling them.

Posted by: Peter Levine | Dec 19, 2005 9:02:08 PM

We found this President lied to us about war and WMD. He prevents proper investigations and interfers with it.

Why would we trust him to spy for us to keep us safe from anything. We have never been safe or free in his world of terror, fear, and lies.

This President wants absolute power to do as he pleases with every freedom and law we have to this date...using "terrorism" as his mantle.

He is a traitor who thinks the Constitution is just a piece of paper. Any President would be impeached for such a comment. He is lawless as to his duty as President taking powers not his.

This President doesn't repect our law or our Constitution as he swore under oath. He committed perjury many times. He should removed and tried for his many criminal acts against our country and its citizens (911, Katrina, debt, etc.).

Posted by: Judy Stevens | Dec 20, 2005 1:17:26 AM

Over at my tiny corner of blogtopia (hail skippy) I never miss the chance to describe the domestic spying (never "eavesdropping") as unconstitutional.

Alito’s views of executive power should be a major, major topic at the hearings.

And this is where Specter can redeem himself a little bit. If he doesn't try to squelch that line of questioning by saying that he's talked privately with Alito and found him to be a man of blah blah blah ... then he'll be showing us at least a little something. I expect the reverse to happen.

Posted by: eRobin | Dec 28, 2005 11:23:50 AM

I guess I'm in that very small boat of people who still chooses to believe that Bush is trying to act with the best for our country in his mind. It seems that people forget that he is a human being just like us all. He has weaknesses, and struggles to know what to do in some difficult situations. It is easy to trash him when we have 20/20 vision after the situations have passed. I personally think his job would be more stress than I would ever want, and will continue to give him my respect as long as I can.

Posted by: Narnia Nerd | Jan 5, 2006 12:16:32 PM

Honestly, are you stupid, ignorant or dishonest? You cite bring up the 4th Amendment as being a separate and more important law, supposedly violated. THen you discuss the Keith case, in which the court did find the unwarratned wiretapping illegal, but very specifically said that this is not being applied to foreign intelligence gathering. You did note that. But then say that that is why FISA was enacted. YOU SHIFTED THE ENTIRE ARGUEMNT THERE. FIsa is NOT the fourth amendment. Nor can congress alter the fourth amendment, or the executive power for that matter. The fourth amendment is not violated.

Posted by: Nick Wilder | Feb 17, 2006 8:40:53 AM

Toi la dan CNTT nhung van chua biet nhieu ve linh vuc nay lam.Toi muon duoc nang cao kien thuc thi toi phai lam gi?Mong cac ban chi giup

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