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later by becoming the manager of the Detroit proto-punk band MC5) and vague language in a crime control statute (since superseded by FISA) gave the President the authority to conduct warrantless surveillance.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.