After hours of public and closed-door grilling of Air Force Gen. Michael Hayden by the Senate Intelligence Committee on his nomination to head the Central Intelligence Agency, the specific legal basis for the electronic surveillance of Americans is no clearer than it was before.
Hayden?s testimony only reiterated the all-purpose authority stated months ago by Attorney General Alberto Gonzales: The president has the constitutional power under Article II as commander in chief of the armed forces to do just about what he chooses.
This interpretation that Article II can be stretched like a rubber band has been frequently challenged ever since by many legal scholars. But Hayden told the committee, regarding the domestic spying he conducted as head of the National Security Agency (NSA), that when administration lawyers “came to me and we discussed its lawfulness, our discussion anchored itself on Article II.”
Section 2 of that article, however, does not specify the powers of the nation?s military chief. Nevertheless, Article II has served as a catch-all authority for all aspects of the Bush administration?s aggressive foreign policy going back before the president?s decision to invade Iraq in 2003.
In a Senate subcommittee hearing nearly a year earlier, a Justice Department official, John Yoo, cited it in saying Bush did not have to get congressional approval to take military action against the perpetrators of the Sept. 11 terrorist attacks.
This was when the Bush adminstration was still peddling the notion that Saddam Hussein had somehow been involved in Sept. 11. Later, after Congress approved a use-of-force resolution, officials, including Gonzales, also cited it in claiming presidential power to approve warrantless domestic surveillance. Hayden, in his latest testimony, did not cite that congressional action, relying only on Article II.
After disclosure late last year of NSA?s domestic surveillance without court orders required under the Foreign Intelligence Surveillance Act (of 1978), Gonzales released a 42-page defense based essentially on the president?s Article II executive power in wartime.
That contention has been challenged by the American Civil Liberties Union office in Detroit. It argues that Article II does not authorize violation of any federal law, including FISA?s provision that any exception to the domestic spying prohibition has to be approved by a special FISA court.
The government has obtained at least two extensions of the deadline to file its brief, pushing back to June 12, when a federal court in Detroit will hear the case. Ann Besson, the ACLU?s associate legal director in New York, says that inasmuch as President Bush and other officials have acknowledged that targeted wiretapping of phones is going on without FISA court approval, the judge should not need additional information from the government on which to rule.
She says that while criticism of so-called data mining of phone records, as recently reported in USA Today, is included in the ACLU case, sufficient details on the activities of the government and cooperating phone companies are not yet available on which to seek a court decision.
Meanwhile, Besson says, ACLU will focus its immediate challenge on NSA?s failure to obtain FISA court approval for its tapping into Americans? domestic calls, which the government says is limited to international conversations in which suspected al Qaeda operatives are involved. . . She calls Bush?s assertion of executive power on the basis of Article II the greatest “of any president in history.”
Shayana Kadidal, staff attorney for the Center of Constitutional Rights in New York, which has joined the ACLU suit, expresses concern that the administration may be stalling in the hope of remedial legislative action.
Bills have been proposed by Republican Sens. Arlen Specter of Pennsylvania and Mike DeWine of Ohio to give Bush broader powers in domestic spying, with only periodic congressional oversight. Kadidal says he fears they might pass before the complaining case is heard.
He calls the open-ended interpretation of presidential power under Article II “a principle without limitation” that could authorize Bush to approve anything from more spying to torture. But so far, such concerns do not seem to be worrying many in Congress.
Jules Witcover,a Baltimore Examiner columnist, is syndicated by Tribune Media Services. He has covered national affairs from Washington for more than 50 years and is the author of 11 books, and co-author of five others, on American politics and history.
