- The Washington Times - Monday, January 30, 2006

President George W. Bush’s signing of the Patriot Act on the heels of the terrorist attacks on September 11, 2001, belies the chief legal defense of his directive to the National Security Agency. The directive authorizes interception of international electronic communications of American citizens on American soil under circumstances in which they enjoy a reasonable expectation of privacy protected by the Fourth Amendment without a court warrant in violation of the Foreign Intelligence Surveillance Act (FISA).

According to the president, when Congress enacted the Authorization for Use of Military Force (AUMF) on Sept. 18, 2001, it intended to crown him with power to ignore any statute he insisted would impede collecting and analyzing foreign intelligence to combat international terrorism, including FISA. It governs, among other things, wartime or emergency surveillances and the breaking and entering of homes and generally requires a judicial warrant based on probable cause.

No Member of Congress, however, hinted at such an intent, which would have permanently voided scores of meticulously crafted FISA provisions because the war against terrorism will be perpetual, for example, a requirement to minimize the interception or retention of innocent conversations.

Nor did the president claim unlimited spying powers through a presidential signing statement or otherwise in approving the AUMF. Nor did he solicit or receive oral or written legal advice from any administration lawyer or nonlawyer that the AUMF trumped FISA until more than four years after its enactment when the New York Times disclosed the secret NSA eavesdropping. The president’s startling new interpretation of the AUMF, reminiscent of a surprise O. Henry ending, enjoys little legal standing. The Supreme Court has repeatedly instructed that contemporaneous interpretations defeat the belated variety, where, as here, they smack of expediency.

The AUMF text authorizing use of “necessary and appropriate” force against the enemy does not buttress the president’s case. In a nation that embraces the rule of law as a civic religion, the ordinary meaning of “appropriate” requires consistency with statutes like FISA, not their negation.

President Bush’s support for the Patriot Act as a needed tool to fight international terrorism contradicts his belated and extravagant interpretation of the AUMF. The Act was signed into law Oct. 26, 2001, but five weeks after the AUMF.

More than a score of highly touted provisions would have been superfluous if the AUMF means what Mr. Bush now says it does, for example, FISA authority to target lone-wolf terrorists. And Mr. Bush’s flagellation of Congress for temporizing over extending and strengthening the Patriot Act would be farcical.

The president’s interpretation would reduce FISA to a shadow. He is asserting power to spy on every person thought a member of an organization thought to be affiliated in any way with al Qaeda on his say-so alone, which covers a staggering percentage of surveillance targets under FISA. Indeed, the spying seems indiscriminate if the spare results and endless dead ends reported by the FBI are to be believed.

On July 31, 2002, Mr. Bush, speaking through the Justice Department then headed by Attorney General John Ashcroft, informed the Senate Select Committee on Intelligence the Patriot Act added important new tools in the war on terrorism.

The president tacitly asserted the legislation was not a needless echo of the AUMF. The department amplified: “Congress, in enacting the USA PATRIOT Act … provided the administration with important new tools that it has used regularly, and effectively, in its war on terrorism. The reforms in those measures have affected every single application made by the department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going ‘up’ on those suspected terrorists in the United States. One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of attorney general-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA’s pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats.” Indeed, Mr. Bush was then so pleased with FISA he opposed a measure by Sen. Mike DeWine, Ohio Republican, to relax the warrant standard for non-U.S. persons from probable cause to reasonable suspicion.

FISA was enacted in 1978 as a joint enterprise between the Executive Branch and Congress. It fits comfortably within the constitutional powers of Congress enshrined in Article I, section 8, clause 18 to make all laws “which shall be necessary and proper for carrying into execution … all … powers vested by this Constitution in the government of the United States, or in any department or agency thereof.”

FISA properly regulates the president’s authority to wage war to safeguard First and Fourth Amendment freedoms that historically have been compromised by the commander in chief, whether during the Civil War, World War I, World War II or the Cold War. In 1975-76, the Church Committee discovered surveillance and mail opening abuses by the NSA, FBI, and Central Intelligence Agency. The CIA’s legendary James Angleton testified the Constitution held a secret exemption for the agency, and President Nixon pontificated that anything the president ordered was legal.

FISA was thus a measured response to genuine, not contrived, executive branch sneers at the rule of law. Mr. Bush’s challenge to the constitutionality of FISA is thus as unconvincing as his suggestion Congress is powerless to outlaw torture or cruelty in the treatment of detainees.

A new FISA balance between civil liberties and national security might be necessary in the post September 11 world. A Republican Congress would not defeat a reasonable proposal by Mr. Bush. And, as with the Manhattan Project to build an atomic bomb, Congress could amend FISA in a way that would not alert the enemy to surveillance techniques or strategies.

Mr. Bush’s cold-shoulder to Congress thus seems inexplicable unless he harbors an ambition through the NSA spying precedent to cripple the legislative branch as a check against executive omnipotence.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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