Washington – Cold War terrors were at a peak and tens of thousands of U.S. soldiers were dying at the hands of communists in Korea when President Harry Truman, citing his authority as commander in chief, seized America’s steel mills.
Seething at this raw exercise of power, the steel companies appealed to the courts. In 1952, in Youngstown Sheet & Tube Co. vs. Sawyer, the U.S. Supreme Court sided with the industry, saying that Truman had exceeded his authority.
Judge Robert Jackson’s concurring opinion set forth an enduring three-part test for gauging the legality of presidential action. When a White House acts in concert with Congress, Jackson wrote, executive authority is “at its maximum.” When the president acts in the absence of congressional intent, he enters a “zone of twilight.”
But when a chief executive acts against the will of Congress, said Jackson, “his power is at its lowest ebb” and “must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
“Zenith of his powers”
President Bush, in authorizing the National Security Agency to eavesdrop on American citizens without first obtaining court orders, claims he is acting as commander in chief in concert with the power Congress gave him to wage war on al-Qaeda, and so is at “the zenith of his powers.”
But Congress and the courts – having enacted and administered for almost three decades a federal law that appears to specifically ban such warrantless eavesdropping – have started to “scrutinize” Bush “with caution.” The Senate is scheduled to hold hearings on the eavesdropping next week.
The dispute has sent government lawyers from the White House and Congress deep into their law libraries, where they have discovered their own legal twilight zone. Of all the things the Supreme Court has ruled on, this particular kind of eavesdropping – described as a warrantless high-tech sweep of thousands of U.S. citizens with purported ties to foreign terrorists – is not among them.
In the 1970s – after 30 years of abuses by Democratic and Republican presidents who claimed that the demands of “national security” in the nuclear age gave them an inherent right to wiretap members of Congress, federal employees, journalists, anti-war activists and other dissenters – the Supreme Court looked at eavesdropping.
In a series of rulings, the court concluded that the First and Fourth amendments to the Constitution require government officials to obtain a warrant before eavesdropping on U.S. citizens, even those whose violent ways threaten “domestic security.”
“Freedoms cannot be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch,” Justice Lewis Powell wrote in 1972. “The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.”‘
The Supreme Court did recognize, in the age of nuclear terror, that U.S. intelligence agencies needed to operate differently overseas, and when tracking foreign spies in the United States. Instead of offering a definitive ruling, the court invited Congress to pass a law to regulate executive behavior in such cases, which was done in 1978 with enactment of the Foreign Intelligence Surveillance Act.
The FISA law, as it is known, set up secret courts and procedures by which federal agents could obtain warrants to eavesdrop on alleged foreign spies or terrorists. It recognized the dangers and the need for haste, and gave the federal government the power to start eavesdropping immediately and apply for the warrant later.
Identifying suspects
The White House argues that the NSA’s ability to use American spy satellites and other surveillance technology, collect billions of bits of raw data from telephone and Internet transactions and crunch the data with cutting-edge computers poses a special case. In other espionage and terrorism investigations, a suspect is identified, and eavesdropping begins. In the case of the NSA, the eavesdropping can come first and identify the suspect.
Even if the FISA law curbed a president’s authority to order warrantless surveillance, Bush’s lawyers say, Congress restored that power when, after the Sept. 11 attacks on New York and Washington, it voted to authorize the president to use what force was necessary to defeat al-Qaeda. (You can read a Justice Department brief on the topic online at news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf.)
The vote authorizing war gave Bush the power to detain a U.S. citizen as an “enemy combatant,” the Supreme Court ruled in the 2004 case Hamdi vs. Rumsfeld. The administration interprets that ruling quite broadly as “authorizing the president to conduct anywhere in the world, including within the United States, any activity that can be characterized as a fundamental incident of waging war,” notes a Congressional Research Service study.
In the absence of a definitive Supreme Court ruling, the CRS analysts don’t totally discount the White House’s reasoning. And they note the safeguards that Bush has built into the NSA operation: 45-day reviews of the program and notification of both Democrats and Republicans in Congress. After reading the CRS report (available on the Web at www.fas.org/sgp/crs/intel/m010506.pdf), Bush loyalists may hoot at critics who claim the president willfully broke the law.
But Americans have cause to wonder – especially given FISA’s permission to eavesdrop first and get authorization later – why the president didn’t go to the FISA courts for warrants, and keep the program out of the constitutional twilight zone.
As a House committee wrote when FISA was passed: “The decision as to the standards governing when and how foreign intelligence electronic surveillance should be conducted is and should be a political decision, in the best sense of the term, because it involves the weighing of important public policy concerns – civil liberties and national security.
“Such a political decision,” the House committee warned, “is one properly made by the political branches of Government together, not adopted by one branch on its own and with no regard for the other.”
John Aloysius Farrell’s column appears each Sunday in Perspective. Comment and read past columns at The Denver Post’s Washington Web log (denverpostbloghouse.com/ washington); contact Farrell at jfarrell@denverpost.com.
