Strict Construction?

Fred Barbash and Peter Baker of WaPo posted this story a short time ago:

President Bush today offered his most elaborate defense yet of his administration’s domestic eavesdropping program, saying he was legally and constitutionally authorized to implement it and obligated to do so in order to protect the country from a new kind of enemy.

In a wide-ranging news conference this morning, Bush said his authority to have the National Security Agency eavesdrop without judicial involvement derived from his inherent constitutional powers as commander in chief as well as from the authorization for the use of military force approved by Congress in the wake of the attacks of Sept. 11, 2001. “Congress gave me authority,” he said.

The “inherent powers” argument is nonsense, but I think it’s fascinating the “strict constructionists” could have found powers in the Constitution no one ever noticed before. The same people who can’t see, for example, a right to privacy in the 4th Amendment certainly have developed an expansive view of Article II Section II. And they say the Constitution is not a living document. Haw.

It is true that some presidents, notably Abraham Lincoln and Franklin D. Roosevelt, have claimed extraconstitutional “war powers.” But they did so publicly, not secretly, and they did not claim a right to flat-out ignore the Bill of Rights. I believe the closest example is Lincoln’s famous usurpation of the power of Congress to suspend habeas corpus. He argued that there was an emergency (a massive insurgency and widespread civic violence) and Congress was not in session at the time. He obtained consent of Congress after the fact. See further discussion at Findlaw. But what Lincoln did, agree or not, was very much in public view.

For more on “inherent powers,” see also Armando at Kos, here and here.

As far as the “Congress gave me authority,” argument goes, I can’t see how Congress can give authority to ignore the 4th Amendment, because that’s a power Congress doesn’t have, either. And members of Congress say they did no such thing. “The president has, I think, made up a law that we never passed,” Sen. Russell Feingold said. More here.

Barbash and Baker continue,

He expressed anger at the fact that someone revealed the secret program, saying he assumed the Department of Justice would launch an investigation to determine the source of the leak. “My personal opinion is it was a shameful act for someone to disclose this program in a time of war. . . . The fact that we’re discussing this program is helping the enemy,” he said.

And he was visibly angered when a reporter asked him what limits there were on “unchecked” presidential authority during wartime. “I disagree with your assertion of unchecked power,” Bush said. “There is the check of people being sworn to uphold the law for starters. There is oversight. We’re talking to Congress all the time. . . . To say ‘unchecked power’ is to ascribe dictatorial power to the president, to which I object.”

See, there’s what President Bush says, and then there’s what President Bush does. And I think this revelation of the President’s creative “construction” of his constitutional powers should tell the Senate to be very careful about Sam Alito and other Bush judicial appointees.

“President Bush’s acknowledgment that he unilaterally approved domestic spying is the latest piece of evidence supporting complaints that his White House operates essentially unchecked by the legislative and judicial branches,” says Dan Froomkin.

Update: More from Kos and from Kieran Healy at Crooked Timber.

Update update: Digby.

7 thoughts on “Strict Construction?

  1. The best defense is, well, to be an offensive liar. I’m not sure what part of his monkey’s butt is the source of his “authorization.” It most certainly is not from statute or the Constitution!

    I’m hearing that the FISA warrant could’ve been obtained quickly, if the request was legitimate. This has nothing to do with inconvenience, or with compromising an investigation. It has to do with “God wants me to be president.” Wouldn’t be surprised if we find out it also had to do with enemies’ lists.

    George Carlin used to do a joke about answering his phone, “F*** Hoover!” (Meaning J. Edgar.) Maybe we can get “Buck Fush” to replace “Hello” in some circles?

  2. I always felt there was too much focus on bush the person and not enough ‘hatred’ of his enablers toadies sycophants without which he would’ve never made it to this point. and while Martha Raddich needs to be skewered for her lack of guts today, I’m really feeling a real hate of bush, because now he is on tv defying the law and all of us and congress, with his ‘ i’ll break the law anytime i please’ approach. you know drunks know no boundaries and neither does this entire crowd. the white house evidently thinks they are boxing the dems as defeatists and traitors and couldn’t care less about the constitution and the country. the gop will not stand up and since it would take his own sorry party to stop him our country is now lost. Fuck every libertarian and socalled conservative- none of you stand for a goddamn thing.

  3. Josh Marshall has new information and insights on this issue. Check him out at

    I, myself, am very discouraged at what this country stands for under the Bush Administration. And, I see little hope for correction. Right now, I am glad that I have no children because they would be inheriting a mess that I don’t think they are prepared to handle.

  4. It appears the feds had a 24 hour grace period in place on 911 that was changed to 72 hours by George W. on December 28th 2001.

    The Foreign Intelligence Surveillance Act:
    An Overview of the Statutory Framework and Recent Judicial Decisions (google cache HTML of a PDF)
    by the Congressional Research Service


    Section 314(a)(2)(B) of the conference report version of H.R. 2883, the Intelligence
    Authorization Act for Fiscal Year 2002, H.Rept. 107-328, replaced 24 hours with 72 hours in each place that it appears in 50 U.S.C. § 1805(f). The measure was forwarded to the President for his signature on December 18, 2001, and signed into law on December 28, 2001, as P.L. 107-108.

    Emergency situations are addressed in 50 U.S.C. § 1805(f).

    Notwithstanding other provisions of this subchapter, if the Attorney General reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained and that the factual basis for issuance of an order under this subchapter to approve such surveillance exists, he may authorize electronic surveillance if specified steps are taken. At the time of the Attorney General’s emergency authorization, he or his designee must inform an FISC judge that the decision to employ emergency electronic surveillance has been made. An application for a court order under Section 1804 must be made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes emergency electronic surveillance, he must require compliance with the minimization procedures required for the issuance of a judicial order under this subchapter. Absent a judicial order approving the emergency electronic surveillance, the surveillance must terminate when the information sought is obtained, when the application for the order is denied, or after 72 hours from the time of the Attorney General’s authorization, whichever is earliest.

    If no judicial order approving the surveillance is issued, the information garnered may not be received in evidence or otherwise disclosed in any court proceeding, or proceeding in or before any grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof. No information concerning any United States person acquired through such surveillance may be disclosed by any Federal officer or employee without the consent of that person, unless the Attorney General approves of such disclosure or use where the information indicates a threat of death or serious bodily harm to any person.

  5. Jonathan Alter, in his by now all-over-the-web Newsweek piece published this evening, writes about that inherent powers bit:

    “No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had ‘legal authority derived from the Constitution and congressional resolution authorizing force.’ But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing ‘all necessary force’ in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.”

  6. Since this is about data mining, I also wish to protest the computerization of all medical records. the bushies are pushing this corporate crap. you think they know about you now- wait till they have your entire genetic medical profile on tap- big brother could only dream….

    We really need a privacy amendment and it is an issue whose time has come.

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