In the WSJ this morning, John Yoo provides a spirited and convincing defense against the ill-conceived suggestion that President Bush may have broken the law (i.e., FISA) by authorizing warrantless electronic surveillance in wartime. This claim was revived in the report by five inspectors general last week (see my post, here). As John writes:
Every federal appeals court to address the question has agreed that the president may gather electronic intelligence to protect against foreign threats. This includes the special FISA appeals court, which in a 2002 sealed case upholding the constitutionality of the Patriot Act held that “the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” The court said it took the president’s power “for granted,” observing that “FISA could not encroach on the President’s constitutional power.”
Now, according to the inspectors general, those of us in government following the 9/11 terrorist attacks should have assumed that the usual peacetime rules for domestic wiretaps applied and interpreted FISA in a most curious way — to delete the president’s traditional authority as commander in chief to collect signals intelligence in wartime.
John also dismantles the favorite claim of the congressional and judicial imperialists (a claim reiterated by Judge Sotomayor on the first day of questioning in her confirmation hearings) that presidential authority to conduct warrantless surveillance is somehow undermined by Justice Robert Jackson’s concurring opinion in the Steel Seizure case (an opinion no other member of the Court joined, which states a test of executive power that Jackson himself called “over-simplified”):
The 1952 Supreme Court case of Youngstown Sheet & Tube v. Sawyer is the IG’s lodestar. In Youngstown, the Court addressed President Harry Truman’s effort to seize steel mills shut down by a labor strike during the Korean War. Truman claimed that maintaining production was necessary to supply munitions and material to American troops in combat. Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes. It does not, however, address the scope of the president’s power involving military strategy or tactics in war. If anything, it supports the proposition that one branch cannot intrude on the clear constitutional turf of another.
Moreover, earlier Justice Departments — reaching across several administrations from both parties — had likewise concluded that Youngstown did not limit the president’s legitimate conduct of foreign affairs and national security policy. This is why all administrations have refused to accept the 1973 War Powers Resolution and have regularly engaged in military conflicts without congressional approval.
John’s conclusion, which is as true today as it was in 1787:
Our Constitution created a presidency whose function is to protect the nation from attack. Gathering intelligence — including intercepting enemy communications — has long been a key aspect of war. Our military and intelligence agencies cannot attack or defend the nation unless they know where to aim. As we confront terrorists who remain intent on attacking the U.S., using weapons we cannot anticipate, we should be skeptical of those who insist that we radically change the way this country has always made war.