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Tomgram: De la Vega, Does the President Really Know Best?

[Note to Tomdispatch readers: I'm switching coasts for a month. While I hope to post the normal number of dispatches during this period, I might, at least initially, prove slower than usual answering mail or fielding requests of all sorts. Please bear with me. I also might, as today, write less myself. Tom]

In every way they could imagine -- unnoticed in broad daylight and in the darkness of eternal secrecy -- the President and his top officials have been hardest at work not at governing the country but at bulking up presidential powers. This, it now seems, was the centerpiece of an audacious law-breaking plan -- or even, you might say, a law-breaking vision -- involving illegal war, illegal treatment of captives, illegal detentions, illegal spying on citizens, and so on -- in which global and domestic power would be nailed down for a generation. Certainly, these officials were intent on creating an unfettered "commander-in-chief" (not just of the military but of a nation of civilians) for their own benefit and that of their followers, not -- you better believe -- for some future Democratic president. They even came up with a fancy theory for why this Constitution-breaking scheme was deeply constitutional (and all their law-breaking unbelievably legal) and dubbed it the "unitary executive theory" of power. This "theory" is to be enforced at the highest level by courts well-packed with believers and a Justice Department led by another believer, a former White House Counsel who personally helped make the theory real. This is nothing short of an imperial cult of the presidency in formation. Former Federal Prosecutor Elizabeth de la Vega, who regularly writes on the Plame case and other legal matters for this site, considers that "theory" and the nature of the law-breaking that lies behind it in the case of the President's authorization of warrantless surveillance by the National Security Agency. Tom


Bush's Warrantless Spying
Does the President Really Know Best?
By Elizabeth de la Vega

OK, everyone who has studied the Unitary Executive Theory of the Presidency, raise your hand. Anyone? Anyone?

If you are not raising your hand, you're not alone. As regular readers of Tomdispatch are aware, only recently has the world received notice that President Bush's "I can do anything I want" approach to governance has a name: the Unitary Executive Theory of the Presidency. Not having heard of this concept, and thinking perhaps that I had missed something in Constitutional Law, I decided to survey a random sampling of attorneys about it. The group included civil practitioners, prosecutors, a federal judge, a former federal prosecutor who has a PhD as well as a J.D., defense attorneys, and a U.S. magistrate. The precise question was, "When did you first hear about the Unitary Executive Theory of the Presidency?" Most said, "The past few weeks," but my favorite was, "A few seconds ago, when you asked about it." All agreed that the term does not appear in the U.S. Constitution and that, the last time they checked, we still had three branches of government.

Discussion of this "theory" has been prompted, of course, by President Bush's recent confession to a crime: repeatedly authorizing the National Security Agency (NSA) to intercept domestic electronic communications for foreign intelligence purposes without a court order in violation of the Foreign Intelligence Surveillance Act (FISA). FISA contains no exception for the President, but Bush claims his action is legal because: (1) Congress endorsed it in its September 18, 2001 Authorization to Use Military Force in response to Al Qaeda's September 11th attacks, and (2) he has inherent power as Chief Executive to act as he deems necessary in wartime. Many scholars, including Georgetown University's David Cole and former New York State Congressional Representative Elizabeth Holtzman have thoroughly debunked these arguments.

You don't have to be a constitutional scholar to know that Bush's legal justifications are weak. You merely have to consider the administration's duplicitous conduct. The Bush team has deliberately concealed this program, not only from the public and Congress, but, most damning of all, from the very agency that is responsible for executing the laws of this country: the Department of Justice (DOJ). It has been widely reported that even Bush appointees, such as former Assistant Attorney General James B. Comey, and possibly former Attorney General John Ashcroft, objected to the NSA's wide-ranging warrantless spying. After 20 years as a federal prosecutor, I am absolutely certain that the vast majority of career attorneys at DOJ and criminal prosecutors from U.S. Attorneys' Offices around the country, as well as federal law enforcement agents, would have refused to participate knowingly in this program. Bush and his coterie knew that their legal arguments were weak and intellectually dishonest, if not ludicrous, so rather than making their case honestly, even to their own people, they avoided dissent by acting in secret and affirmatively misleading the entire country. Using a tragically familiar modus operandi, Bush has carried out his unlawful spying scheme by acting not as a unitary executive (whatever that is), but as a solitary executive -- as if the President Knows Best.

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posted by Annamarie at 6:39 PM