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I am confused. The New York Times first reports that John McCain now agrees with the Bush administration that the president has the constitutional power to disregard FISA. Now, today it publishes a story saying Bush is alarmed he'll lose the statutory authority Congress recently gave that permits him to get around the old FISA framework. But wait-I thought Bush said he could not be bound by legislation in this area in the first place, so great were his powers as commander in chief. So, why then is he worried about whether Congress does or does not renew the temporary legislation permitting him to get around FISA? Can't he just disregard FISA no matter what Congress does or does not do? And isn't that just the legal position that McCain was supposedly signing on to a couple of days ago?
Of course, one possibility is that the administration actually won't comply with FISA even if Congress fails to reauthorize the current Terrorist Surveillance Program. Sure, it says it will be required to do so, but that's just part of an effort to pressure Congress into granting new powers. When push comes to shove, the administration will do what it did when no one knew what it was up to: just defy the laws on the books by claiming preclusive constitutional powers. But let's assume the administration is serious when it says that if negotiations on the Hill fail to result in a reauthorization, they'll be stuck with the old regime. What has changed that now makes them feel so stuck?
Is it:
1) Lawyers within the Justice Department have rejected the argument that the Constitution gives the president the power to disregard FISA and also concluded that recent legislative developments have rendered illegitimate the controversial claim that the initial Authorization To Use Military Force from 2001 superseded the old FISA regime? If so, that's a big deal, and it would be good to know how this internal legal shift came about.
2) Lawyers for the telecoms have finally balked and are no longer willing to participate in a program that is based solely on the administration's claims of commander-in-chief override power or the AUMF-supersedes-it theory. If so, it would be good to know what has caused the telecom lawyers to feel obliged to say, "No."
3) The FISA court has basically made it clear that it will make even the old regime useless so long as the administration also relies on a parallel, supersecret non-FISA surveillance program that has not been separately approved by Congress, presumably by deeming even requests under FISA fatally tainted. If so, it would be nice to know just what theory of law the FISA court is using and why the Bush administration feels the need to rely on the FISA process for some things in the first place such that it would lose something significant if it lost access to the old regime.
4) The politics of the moment have changed now that the whole supposedly secret program has been made so public that the debate over its legal underpinnings has become a campaign issue. So, even though the administration believes it has the legal power to disregard FISA and the telecom lawyers would comply with requests to do so, it simply no longer feels it can act on what it believes to be correct understanding of the law as a practical matter. But if so, what is it about present politics that are now so different?
For what it's worth, (1), (3), and (4) all seem like weak explanations to me, but this being a state secret and all, I have no idea. What I am interested in is the underlying puzzle: On the one hand, the administration is claiming preclusive constitutional authority, and we are debating the extent to which the Republican nominee shares that same constitutional philosophy. On the other, the administration is bemoaning the fact that Congress is forcing it to comply with an outdated statutory framework. How can both things be true? And if both are, what is the dynamic that makes the administration feel unable to break a law that it believes it has the legal right to break and that it has disregarded in the past?
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The current Bush administration defense of its Terrorist Surveillance Program, known to some as the illegal domestic spying program, leans heavily for its legal justifiation on the Authorization To Use Military Force, which was passed right after 9/11. The argument is that the AUMF is a later-enacted, more specific measure, and that it therefore supersedes the more general and earlier adopted Foreign Intelligence Surveillance Act. By this means, presto, the AUMF authorized warrantless wiretapping consistent with the terms of that later-enacted statute. Many in Congress are already on record saying that they never intended the AUMF to have that consequence and that evidence of legislative intention has bolstered arguments by many opponents of the program that the administration's statutory claim is risible. But now this recent disclosure reinforces that judgment. It indicates that the Bush administration lawyers who were around when the AUMF was negotiated also did not think the AUMF had that consequence. Their initial theory, the new disclosure indicates, was that, even aside from their broad views about the president's power as commander in chief to override conflicting statutes, FISA itself contained an implied exception for the president to do what needed to be done. The AUMF argument, then, was something that the administration came up only with much later. But if neither the congressional leaders nor the Bush administration lawyers who actually negotiated the AUMF's passage thought that vaguely worded measure sufficed to provide authority for warrantless wiretapping, then what exactly is the reason to think that the best reading of that statute is the one that is now being pushed by the administration? After all, it's one thing to contend that a vague, later-enacted statute supersedes an earlier one that is clear. It's quite another to argue that a later-adopted interpretation of that same statute should supersede the original one.
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