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It's Time to Appoint a Special Prosecutor to Investigate the President's Actions With Respect to the NSA's Warrantless Wiretapping


Wednesday, Mar. 01, 2006

The debate in Congress - and in the media - over the NSA surveillance program has ranged over many specific subtopics, but in the end, it comes down to one fundamental question:

Did the President break the law?

In this column, I will analyze this question - and argue that, indeed, he did.

I will also argue that, accordingly, an independent special prosecutor must be appointed to investigate and, if appropriate, prosecute those responsible for the violation -- including the President and those who knowingly carried out his orders in violation of the law. And the proper response, after that, may well be impeachment.

The President's Duty is To Uphold the Law - Not Break It

The President is bound by his oath of office to "preserve, protect, and defend" the Constitution of the United States, and to take care that the laws are faithfully executed.

But if the President is violating a federal law, he can hardly be faithfully executing that law. And if he is violating his oath, he can hardly be defending the Constitution.

Moreover, the President cannot plausibly argue that he can violate his duties in order to uphold them; the contradiction is apparent. As Senator Leahy recently noted:

The president and the Justice Department have a constitutional duty to faithfully execute the laws. They do not write the laws. They do not pass the laws. They do not have unchecked powers to decide what laws to follow. And they certainly don't have the power to decide what laws to ignore. They cannot violate the laws and the rights of ordinary Americans.

Leahy added, "If you do not even attempt to persuade Congress to amend the law, then you're required to follow the law as it's written."

The President Broke the Law When He Authorized Warrantless Wiretapping

Bush plainly violated the Foreign Intelligence Surveillance Act (FISA) when he ordered the NSA to engage in warrantless domestic spying. FISA clearly requires that a warrant be obtained to engage in any executive branch foreign intelligence surveillance, including domestic surveillance. No warrant was procured - nor did the President bother to ask Congress to amend its law, before flagrantly breaking it.

The President seems to contend that a subsequent statute - the post-9/11 Authorization to Use Military Force (AUMF) -- created an implicit exception to FISA. (A recent White Paper sets out the President's current argument in detail, including this one.) But that's absurd, as a matter of statutory interpretation.

The AUMF is exactly what its title would suggest: An authorization of military force against those involved in 9/11, not an authorization to secretly break law clearly set down by another branch of government. The AUMF's language is very clear:

. . . the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Unsurprisingly, not a single Senator has come out in support of the President's claim that the AUMF gave the president the authority to go around the FISA law to wiretap Americans. And several have stated what is obvious from its language: It is nothing of the kind. Indeed, Senator Leahy noted:

Now, this authorization is not a wiretap statute. I was a prosecutor, Senator Specter was a prosecutor, a lot of prosecutors here, we know what a wiretap statute looks like. This is not it.

Attorney General Gonzales has countered that the AUMF authorizes "the use of all necessary and appropriate force." That's true - but irrelevant. Surveillance is not military "force."

Also, the AUMF authorized even military force to be used only against those "nations, organizations, or persons" the President "determined" to have been, or have harbored, 9/11 culprits. Of course, that would include al Qaeda and its members. Yet reports indicate that the surveillance is not targeted to just al Qaeda members; instead the NSA reportedly employs broad "data mining." So even if surveillance could somehow be deemed a use of force, it would still sweep more broadly than the AUMF permits.

As Justice Sandra Day O'Connor stated in the Supreme Court's Hamdi v. Rumsfeld decision, a "state of war is not a blank check for the President." Nor was the AUMF.

Finally, longstanding rules of statutory interpretation require that the specific statute control over the general one. FISA is quite specific. The AUMF does not amend FISA, or even mention it. Nor can the AUMF be reasonably construed as a specific authorization to engage in electronic surveillance outside of FISA's clear and strict rules.

In the recent White Paper, the Administration claimed that rules of statutory interpretation actually cut the other way. But these claims are not convincing. First, it claimed that in order to avoid constitutional conflict, any ambiguity as to how to interpret FISA and the AUMF ought to be resolved in the President's favor. But one could more persuasively argue that to avoid constitutional conflict, the ambiguity should be resolved in Congress' favor - after all, that result would honor the constitutional power balance. Indeed, it would stabilize that balance by fulfilling the settled expectations created by those longstanding, sensible rules of statutory construction that say that specific statutes govern the specific areas they address, unless specifically superseded.

Second, the Administration claimed that if FISA weren't read its way, then it would be unconstitutional as applied to NSA wiretapping, presumably because it interferes with Presidential power. But that contention, too, is odd, and wrong.

Here's why: The Fourth Amendment requires a warrant for searches. The Supreme Court has held, in United States v. Katz, that wiretapping is a search, falling within the Fourth Amendment. FISA says it's okay for the federal government to get that warrant from the FISA court, rather than a federal court, in intelligence-related cases. But even if FISA disappeared tomorrow, the Fourth Amendment wouldn't.

A warrant still would be required - from the federal courts, which currently grant warrants in non-intelligence-related investigations. And one fact that no one has denied is that for the NSA's wiretapping program, no warrant was ever procured. So unless the Administration is going to claim that the Fourth Amendment itself is unconstitutional, it's out of luck with this argument.

The Inherent Authority Defense

In addition to invoking the AUMF, the DOJ claims that warrantless wiretapping is legal because the President has the "well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States." Indeed, John Yoo, working for the Office of Legal Counsel, argued in a September 25, 2001 memo that no statute passed by Congress "can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response."

But as Michael Dorf details in a recent column, while it's true that Congress cannot limit some of the presidential powers that are expressly enumerated in the Constitution, the power to surveil Americans is simply not among them. Indeed, the specter of unchecked executive authority is exactly why our founders erected a tripartite government, a system of checks and balances. Unchecked executive authority rocks the very foundations of that system.

We've learned that lesson time and time again. As John Dean has explained in prior columns, this theory of unchecked presidential power was Richard Nixon's downfall, and was roundly rejected by the majority report on the Iran-Contra debacle (with the minority, including then-Representative Dick Cheney, dissenting).

Moreover, as Edward Lazarus has explained in a prior column, the Supreme Court itself has clearly rejected this view, in Youngstown Sheet & Tube Co. v. Sawyer.

Attorney General Gonzales has tried to get around the Youngstown precedent by pointing out that it involved "the United States taking over domestic industry." But the surveillance at issue here is domestic too, and, like the steel seizures, it affects Americans at home.

Gonzales also claims there's a "long history of presidents engaging in electronic surveillance of the enemy." But was every American whose communications fell prey to data-mining "the enemy"?

It's Time for a Special Prosecutor to Be Appointed

Congressional investigation of the NSA matter may occur - there have been promising signs - but even if it does, a special prosecutor should be appointed as soon as possible.

The President didn't just ignore FISA: He committed a crime by violating it.

An intentional violation of FISA is a felony, punishable by "a fine of not more than $10,000 or imprisonment for not more than five years, or both."

That means not only that the President appears to have committed a crime, but also that he appears to have committed an impeachable offense. An indictable offense qualifies as among the high crimes or misdemeanors for which impeachment is possible.

With the Executive plainly subject to an intense conflict of interest, the appointment of an independent special prosecutor - as occurred in the Valerie Plame leak case - is necessary. But unlike in the leak case, here, the entire Executive branch, including the Department of Justice, is implicated. So, to ensure fairness, Congress or a court must mandate the appointment.

If the President can intentionally violate the laws of this nation, then the fundamental structure of our government has been forever altered.

Jennifer Van Bergen, a journalist with a law degree, is the author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004). She writes frequently on civil liberties, human rights, and international law. Her book, ARCHETYPES FOR WRITERS, about the characterization method she developed and taught at the New School University, will be out in 2006. She can be reached at

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