Balkin and Lederman: Whitehouse's outrage should be directed at Congress

[ProSense]

Saturday, December 08, 2007

Whitehouse blames the White House, but he should blame Congress

JB

This speech by Senator Sheldon Whitehouse accuses the Bush Administration of dictatorial powers. The Senator read classified OLC opinions that stated that the President is not bound by previous executive orders, that the President can determine for himself how they apply and whether to revoke them, that the President can waive orders by merely disregarding them in practice, and that the Justice Department must obey the President's determinations with respect to the operations of Executive Orders.

Whitehouse is angry at these opinions largely because he believes they permit the President to change a previous executive order that limits surveillance of Americans abroad to those the Attorney General believes to be agents of a foreign power. Absent this executive order, the President can spy on Americans abroad for reasons having nothing to do with their relationships to foreign powers because of the PROTECT America Act passed last August.

It's important to separate out these two issues: whether the President can change Executive Orders unilaterally and whether the PROTECT America Act's elimination of civil liberties protections for Americans was a good idea.

<...>

The real problem, as Whitehouse well knows, is not the President's decision to change executive orders to expand what he may do under the auspices of the Protect America Act. The problem is the Protect America Act, which shredded civil liberties protections by redefining a wide swath of electronic surveillance as not "electronic surveillance" under the meaning of FISA.

Whitehouse doesn't like the Protect America Act any more than I do. But he should direct his fire at the Congress that produced it last summer in a shameless display of capitulation to demagoguery and fear mongering. The Protect America Act was completely unnecessary to ensure that the President had the ability to engage in surveillance on foreign terrorists abroad, even if their communications ran through the United States. If Congress regulated the President's surveillance practices as it should, the President would be required to obey those laws; he would be required to take care that the laws be faithfully executed. If the President then refused to obey an amended FISA, Whitehouse's complaints about the White House would be fully justified.

more

Saturday, December 08, 2007

Misdirected Outrage

Marty Lederman

The blogging mentality, I suppose -- Jack and I were writing similar posts at the same time.

Senator Sheldon Whitehouse of Rhode Island has been one of the very best, most careful and most thoughtful legislators in recent months on a wide range of legal issues relating to the Gonzales DOJ, the war on terror, NSA surveillance, and the like.

Therefore it's with some regret that I write here to take issue with his latest speech on the Senate floor, expressing his outrage in response to reading classified OLC memos on the NSA surveillance questions. In this case, sorry to say, I think Senator Whitehouse has primarily aimed his criticisms at the wrong targets.

Whitehouse is a member of the Senate Intelligence Committee, and thus he was recently (but years too late) given access to the OLC opinions written over the course of the several years of the secret NSA surveillance program in violation of FISA. Those opinions should, of course, be declassified and made public to the extent possible (redacting any information about NSA technological capabilities); and Congress should take some serious steps to prevent the Executive from overclassifying; but be that as it may, it's a small advance that at least some legislators have now seen the OLC documents. Unfortunately, the Senators are not permitted to keep copies, or, apparently, to show them to aides, let alone outsiders, with working knowledge of the legal issues; nor are the Senators permitted to say anything about the documents, even if they think the documents are outrageous and authorize unlawful conduct . . . unless and until the Administration chooses to selectively declassify portions of them.

<...>

Nevertheless, there does appear to be an outrage here. Apparently -- and this is real news of the Whitehouse statement -- the President decided to secretly ignore Executive Order 12333, which, among other things, has long been the only real source (other than Fourth Amendment) of legal protection of the privacy rights of U.S. persons overseas vis-a-vis surveillance by the federal government. This is a gap in FISA that the 1978 Congress said it would get around to closing -- but it never did. And so the only thing standing between U.S. persons overseas and their own government snooping on them has been E.O. 12333.

If the President publicly rescinded 12333, there would be a huge outcry. It would prompt Congress to act immediately.

Which is presumably why he didn't do so in public. Whitehouse suggests that the President secretly transgressed 12333. If so -- if in fact the President chose to ignore 12333 without notifying the public or Congress, it's quite outrageous -- constitutional bad faith, really, to announce to the world that you are acting one way (in large part to deter the legislature from acting), while in fact doing exactly the opposite. It might even mean that the Administration allowed executive branch officials to mislead Congress by assuring them in testimony that 12333 remained a serious limitation on government surveillance. (Now that's something worth investigating.)

So Senator Whitehouse is basically correct when he characterizes the President as saying "I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them."

This might not be unconstitutional -- it might not even be illegal -- but it is a serious breach of faith, and a severe threat to the operation of checks and balances, if, indeed, the President has been secrecy authorizing violations of E.O. 12333.

Therefore Senator Whitehouse is absolutely right, not about the constitutional issue, but about one other, very important matter:

Unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: Nothing. Nothing. We simply cannot put the authority to wiretap Americans, whenever they step outside America’s boundaries, under the exclusive control and supervision of the executive branch. We do not allow it when Americans are here at home; we should not allow it when they travel abroad. The principles of congressional legislation and oversight, and of judicial approval and review, are simple and longstanding. Americans deserve this protection wherever on God’s green earth they may travel.