A window into the Bush Administration's legal manuevering
On Thursday the President once again signed into law a statute--the Patriot Act renewal--which amends the Foreign Intelligence Surveillance Act (FISA). The Patriot Act made many significant changes to FISA--changes which were made permanent by this bill--but there is one crucial provision that has not changed; FISA still clearly states that its procedures "shall be the exclusive means by which electronic surveillance . . . may be conducted." In other words, the President has once again reaffirmed the validity of a law which expressly criminalizes the type of warrantless surveillance which his administration has been conducting for four and a half years.
Meanwhile, documents released on Thursday--and highlighted by Glenn--provide a window into the bizarre legal maneuvering within the administration following the public disclosure of this program. The central figure in these documents is David Kris, who was the Associate Deputy Attorney General from 2000-2003. Marty Lederman, who worked with Kris at the DOJ, has written an excellent post discussing the significance of these documents. As Marty explains, Kris' memorandum thoroughly dismantles the administration's legal arguments, particularly the assertion that the AUMF somehow provided the President with the statutory authority to bypass FISA.
Marty also confirms something that seems pretty clear from reading the documents: despite being the person at the DOJ most knowledgeable about FISA, Kris was left entirely out of the loop with respect to the NSA program. That's a rather astounding fact given that the administration sent Kris to Congress on several occasions to testify about FISA. For example, on September 10, 2002--well after the NSA program began--Kris testified before the Senate Judiciary Committee and said the following: "Let me repeat for emphasis: We cannot monitor anyone today whom we could not have monitored at this time last year." Keep in mind that "at this time last year" the September 11 attacks had not yet occurred.
Perhaps even more significantly, Kris' emails reveal that, as late as January 2006, the administration's legal justifications for the NSA program were still highly fluid and evolving. It's as if the DOJ never really gave the issue much thought until the New York Times broke the story. In a Dec. 22, 2005 email, Kris writes:
[I]t looks like you guys are leading with Article II and using the AUMF as support, rather than leading with the AUMF interpreted broadly in light of constitutional avoidance doctrine, and then falling back on Article II. If I'm reading it right, that's an interesting choice--maybe it reflects the VP's philosophy that the best defense is a good offense.
As we know, the DOJ's White Paper took the approach Kris suggested, putting primary emphasis on the AUMF and constitutional avoidance arguments and relying on the Article II argument only secondarily. And for good reason. In a one-sentence email on Dec. 21, Kris pointed out the rather glaring conceptual flaw in the administration's Article II argument:
"My major disagreement with this, I think, is that the President's inherent authority to conduct electronic surveillance or physical searches in the *absence* of legislation is not the same as his inherent authority to do so in the *presence* of such legislation" (emphasis added).
You know you don't have a very strong argument when it takes just one sentence to destroy it. Perhaps that's why the DOJ's white paper is unsigned. I doubt any aspiring attorney wants to be forever associated with those legal arguments.
All of this just makes me more curious to see the official legal opinions on which this program is based. Why was all this last minute legal brainstorming necessary if the administration had already submitted this program to intensive legal review, as it claims? Why did the administration feel the need to reach out to Kris in 2006--in the private sector--when it had left him entirely out of the loop when he actually worked for the DOJ? Nothing about this makes any sense to me. Someday perhaps Jack Goldsmith can explain to us why the administration is so afraid to release his 2004 OLC opinion. I have a guess, but at this point, who really knows.