January 9, 2006
Another Scandal that Wasn'tBy J. Peter Mulhern
There is often much less than meets the eye in the news from our nation's capital. Rarely, however, does anything as trivial as the NSA 'domestic spying' story make the front pages and generate gales of heavy breathing from the media elite. Heavy breathing notwithstanding, that story is on a nonstop flight to nowhere. It will disappear without a trace despite the best efforts of the New York Times, the Washington Post and a cadre of demented members of Congress.
In the mean time it makes for entertaining theater of the absurd. The looniest congressional Democrats are muttering darkly about impeachment. Left—leaning lawyers are concocting closely reasoned arguments that the administration violated the terms of the Foreign Intelligence Surveillance Act (FISA) by gathering intelligence on our deadly enemies without consulting any judges. The New York Times and the Washington Post are working hard to keep the story going with new revelations, each more trivial than the last. The nutjobs at democraticunderground.com are quivering with anticipation. Could this, at last be their holy grail? Are we about to witness the second coming of Watergate?
No. The NSA flap has very little potential to hurt President Bush and every serious player among his enemies must know that. A fire can't sustain itself without fuel and oxygen. A scandal can't sustain itself without embarrassing information and spectacle. Scandals feed on a stream of revelations that discredit somebody. They need events — hearings, trials, press conferences — that dramatize the revelations. The NSA story lacks both of the essential prerequisites of a scandal.
You can't sustain a scandal by revealing the shocking truth that the President of the United States is doing his job. He isn't ashamed of gathering intelligence on our deadly enemies and nobody who doesn't already loath President Bush will blame him for it. It takes some scandalous material to make a scandal. There may, for example, be a scandal when the President sodomizes an intern in the Oval Office. Whatever the President and the First Lady may do in the family quarters after hours, it isn't going to cause a scandal.
But, but, I hear them sputter, the President violated the law. He bypassed the checks and balances Congress wisely provided when it established the secret FISA court. Isn't that enough to get him in serious hot water?
No. All the arguments about whether FISA applies to wartime intelligence gathering are so much pettifogging pedantry. FISA is a model of opaque draftsmanship. Don't take my word for it, try to read it yourself.
It is certainly possible to read FISA as attempting to limit President Bush's power to intercept al Qaeda communications. It is also possible to read it more modestly. In the last analysis, however, FISA is beside the point.
If FISA tries to restrict the President's power to spy on our enemies during a state of war that Congress itself proclaimed then FISA is blatantly unconstitutional. Only a fool or a traitor would suggest that Congress can constitutionally require that the President play 'Mother—may— I' with a motley collection of judges before intercepting enemy communications in wartime.
Congress can no more empower judges to make decisions about how we gather intelligence than it could empower them to decide what targets our Air Force should bomb or what streets our troops should patrol.
There is nothing complicated about this. The President is Commander in Chief. He makes the military decisions. He decides, with the advice of his subordinate commanders, when and where the United States government should gather intelligence because that is a military decision.
If you find the scope of Presidential power in wartime frightening, you should. It is frightening. That is one reason wars are to be avoided whenever possible. It is also why elections matter. The President of the United States has awesome responsibilities and correspondingly awesome powers. The Constitution entrusts all executive power to him and executive power is unavoidably broader in wartime.
If there were any evidence that President Bush is abusing his broad powers that would be a matter of grave concern. So far, however, nobody has adduced any evidence of abuse. Instead, what we see in the morning papers is rampant abuse of the evidence. There is not the slightest indication in any of the breathless news reports published so far that the President has exceeded or misused his broad powers as Commander in Chief to seek out and destroy Islamist terrorists.
FISA may instruct the President to consult a panel of judges before listening to enemy communications. If it does it is unconstitutional, null, void and asinine.
When Congress violates the Constitution by trying to hamper the legitimate exercise of executive authority the President has both the right and the duty to ignore it. Which brings us to the second reason that the NSA nonscandal will sink without a trace.
There won't be any riveting hearings, trials or judicial decisions to keep the NSA pot boiling because the President's determination about the scope of his own constitutional authority to gather military intelligence is not subject to any meaningful review. With the advice of the Attorney General and his other lawyers the President has decided that he is constitutionally empowered to authorize the NSA program which is currently under attack. For all practical purposes that decision is final.
There won't be any judicial decisions on the subject. Nobody can bring suit on the ground that the government listened in on a heart—to—heart with that nice Mr. Zawahiri in Pakistan because nobody can show that the government did listen to any particular conversation.
The government isn't going to volunteer that information. It wouldn't even turn that information over in response to a court order and no rational person would even suggest that it should. Any effort by members of Congress to bring a suit claiming that the President has interpreted his own powers too broadly at the expense of Congress would be bounced out of court under the political question doctrine. From the earliest days of our republic the courts have refused to involve themselves in the perennial turf war between Congress and the President. They won't dive into it now.
At this writing, news reports are trying to make some hay out of a Congressional Research Service report. That report analyzes FISA and fatuously takes issue with the Bush administration's observation that the Commander in Chief has the power to gather military intelligence in wartime. The report won't attract much notice for two reasons. First, it is nonsense. Second it has no potential to change anything. A CRS report concluding that the President has made a constitutional mistake is no different from my opinion that the Supreme Court made a mistake when it asserted the authority to invalidate state laws prohibiting abortion. The matter is decided and nothing some scribbling bureaucrats have to say will make the slightest difference.
The President is an independent constitutional actor. One of his powers is the power to decide on the scope of his other powers. As Mr. Jefferson put it:
The only routine appeal from a President's decision about the scope of his own powers is to the electorate.
Jefferson also wrote
Like the President, Congress is an independent constitutional actor. It could determine that the President has overstepped his constitutional authority and take steps to discipline him. It has the power of the purse and the power of impeachment. It could use either one to express its displeasure with the dirty business of spying on terrorists.
It could, but it won't. The President's critics are a minority in both houses of Congress and likely to remain so long after Mr. Bush completes his second term and retires to clear brush in Crawford full time. Most of them are also too fond of their careers to self—immolate by trying to punish the President for actions that don't offend any substantial American constituency.
Congress won't even hold hearings capable of generating much public interest. Hearings require witnesses and there won't be any witnesses with anything meaningful to say. The Senate Judiciary Committee could round up the usual suspects from law school faculties to argue impotently about whether the President correctly construed his own powers under the Constitution. C—SPAN would cover it for the benefit of insomniacs everywhere. But Congress won't be able to hold hearings that reveal juicy details about the NSA program at issue because all those details are highly classified. Any witness willing to reveal them would go straight to jail without passing go or collecting $200.
Most lawyers and law professors worship courts. They have a hard time wrapping their minds around the fact that sometimes the President has the last word on a question of Constitutional interpretation. Nonetheless, on the question of his power to spy on terrorists the President has already spoken the last word. The politicians know it and the lawyers will all figure it out before long.
George W. Bush has nothing to fear from the NSA flap. Why then are the Democrats and their allies pressing it so hard? The principal short—term effect of all their bleating about protecting the privacy of terrorists is to highlight their own frivolity on the subject of national defense.
There is method to their madness but unraveling it is another subject for another time.
J. Peter Mulhern is a lawyer in the Washington, DC area, and a frequent contributor.