December 22, 2005

Executive Order 12949: But Bill Clinton Said We Can Do It!

Well, no he didn't. And neither did Jimmy Carter.

Executive Order 12949, signed by President Clinton in 1995, and Executive Order 12139, signed by President Carter in 1979, each outlined executive branch procedures promulgated in compliance with FISA. These executive orders were issued in the wake of the enactment of the FISA statute (Carter), and then the amendment of the FISA statute (Clinton) and their purpose was to ensure compliance with FISA. For instance, in Executive Order 12949, Clinton wrote that the order was intended "to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the [FISA] Act." Likewise, in Order 12139, Carter said that the order was based upon, "the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978." Interestingly, President Bush himself issued an order, Executive Order 13383, on July 15, 2005, that also modified the executive branch's FISA procedures. Each of these three presidential orders affirms the executive's obligation to comply with FISA. No president, until now, has asserted the power to ignore or violate FISA.

Courts? We Don't Need No Stinkin' Courts!

If the President can do whatever he thinks appropriate, regardless of FISA's requirements, then what is the point of FISA? If, for example, the Bush administration had a wiretap application rejected by the FISA court (admittedly an exceedingly rare occasion), the Bush administration, according to its arguments, can simply ignore the FISA court ruling and conduct the surveillance anyway.

When one considers that fact, as well as the FISA emergency provision permitting post-hac review, the reason for the Bush administration's actions becomes clear: President Bush has been conducting electronic searches in circumstances that the FISA would not approve. The Administration, rather than be told so by the FISA court and then being in the stark position of defying the FISA court, chose to by-pass the FISA court entirely. One suspects, then, that the non-FISA searches were based upon reeds of suspicion so flimsy that no court would ever give its approval. And that is precisely the problem: unchecked, unreviewed, power wielded by the executive branch. That is how monarchs and dictators operate, not American presidents. Moreover, the presidential oath to uphold the constitution is an inadequate substitute. Kings take oaths, too; tyrants make promises; the question is whether they can be held accountable.

The "inherent" authority of the President to conduct foreign surveillance does not, in my view, survive FISA in any other than a residual capacity, should FISA be repealed, for instance, or in circumstances not covered by FISA. To be clear, FISA clearly covers the precise circumstances in which the Bush administration has secretly conducted (and continue to conduct, presumably) its electronic eavesdropping. For exigent circumstances, one of the FISA provisions permits immediate wiretap subject to post hoc FISA-court review within 72 hours. Moreover, neither FISA nor the Constitution grant the executive authority to conduct wiretapping that is unreviewable by any co-equal branch of government.

In my view, FISA plainly circumscribes presidential authority, notwithstanding the "encroachment" dicta in the FISA Appeals Court 2002 decision. This legislation was signed into law by two presidents in 1978 and 1995. Indeed, the very purpose of FISA was for the two political branches, each with its own constitutional authority in this arena, to create a procedural structure for foreign surveillance. (By the way, Gorelick's 1994 statement acknowledges the authority of Congress to so legislate.)

However, even if the "inherent" authority of the President to conduct foreign surveillance is more than dormant post-FISA, "inherent" authority is not the authority claimed by the Bush administration: it is not absolute authority; it is not unchecked authority; and it is not unreviewable authority. And the presidential oath of office is hardly an adequate substitute: kings take oaths, too.

The so-called "inherent" authority of the President was subject to judicial review even before FISA was enacted, and, surely, FISA did not expand the power of the presidency. FISA did not make the executive the sole arbiter of foreign surveillance activities -- unchecked and unreviewed. That power was never vested in the United States presidency, either before or after FISA. Yet, that is precisely the power that the Bush administration arrogates to itself.