Gonzales vs. Specter - the final product

[riceowl]

Thought I'd share it for Atlas criticism now that we've gotten our papers back (please ignore the cheesy creative stuff that only happens once or twice - we were supposed to be "on a court" and write a brief):

   The issue before the court is whether or not the President can legally authorize domestic wiretapping without a warrant.  Attorney General Alberto Gonzales defends the President’s right to such surveillance under the 2001 Authorization for Use of Military Force (AUMF) against al-Qaeda in the war on terror (Pub. L. No. 107-40, 115 Stat. 224).  He states that the AUMF implicitly gives executive power to wiretap when it gives the government the ability “to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States.” (Pub. L. No. 107-40, § 2(a), 115 Stat. 224).  However, Senator Arlen Specter of Pennsylvania believes that Gonzales's assertion "defies logic and plain English."  (Liptak,Adam. “2 Laws and Their Interpretation in Limelight at Wiretap Hearing,” New York Times, 7 Feb. 2006, A18).  He and several other members of the Senate Judiciary Committee reject the Attorney General’s justification, citing the Foreign Intelligence Surveillance Act (FISA) of 1978 (Pub. L. 95-511, 92 Stat. 1783).  FISA was established to protect privacy rights and articulate what constitutes appropriate domestic surveillance.  The Court finds that it is difficult to assert that warrantless domestic wiretapping was either necessary or appropriate, based on a variety of legal precedents and straightforward constitutional law.     
   The Attorney General does not try to hide from the fact that the wiretaps were not authorized by FISA, and thus not authorized by Congress.  This action alone calls into question how much Congressional action can limit presidential powers, and a reading of the U.S. Code shows that the warrantless wiretaps were against the law.  For example, it reads that FISA is the “exclusive means by which electronic surveillance…may be conducted.” (18 U.S.C. § 2511, 2(f)).  By side-stepping the FISA courts, the National Security Agency (NSA) attempted to avoid seeking Congressional approval.  Perhaps their motives were just (a desire to avoid al-Qaeda's interception of their plans), perhaps they were unjust (a desire to avoid Congress because they did not think it would pass).  But either way, U.S. Law determines that any avoidance of the secret courts in pursuit of domestic surveillance is "criminal." (50 U.S.C. § 1809(a)).  The Attorney General may try to argue that the wiretaps are a perfectly acceptable action in times of war.  This argument has two follies.  The first is that while FISA allows for warrantless surveillance in times of war, it only does so for "a period not to exceed fifteen calendar days following a declaration of war by the Congress."  (50 U.S.C. § 1811).  Seeing as it has been four and a half years since the AUMF was passed, this argument would not hold up in court.  Secondly, the argument would assume that the surveillance was done in wartime.  However, Congress has never officially passed a declaration of war against al-Qaeda.  The Attorney General's justification for this has then turned to the precedent of Hamdi v. Rumsfeld, where the Court decided that the detention of enemy combatants was authorized under the AUMF as a "fundamental incident of waging war." (542 U.S. 507, 2004).  But attempting to equate that action with domestic warrantless wiretapping is a mistake, as the former endorses such action on foreign soil and the latter attempts to do so on American soil.  The incompatibility of the argument with the FISA statutes makes the point moot. 
   Another argument the Attorney General has used to defend the program is that Congress implicitly repealed the section of FISA that states that it is the exclusive means through which warrantless domestic surveillance may be done when it passed the AUMF.  However, several Senators have come out since this statement emphatically declaring that they did not think they were issuing the president that kind of authority by enacting the AUMF.  By the Attorney General’s logic, the executive would not longer have to rely on the courts to accomplish investigations to pursue al-Qaeda.  However, the precedent of J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred International, Inc. requires a presence of “overwhelming evidence needed to establish repeal by implication” (534 U.S. 124, 137; 2001).  The Attorney General's assertion that AUMF repealed FISA is not specific enough to indicate that this was, in fact, the case.  The Court further refined this ruling in Morton v. Mancari when it decided that "the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable" (417 U.S. 535, 550; 1974).  The fact remains that FISA and AUMF are not completely irreconcilable statutes.  It was very possible for the administration to obtain warrants through FISA to wiretap individuals after the AUMF.  But it did not, and this remains a highly questionable action.  This argument failing, the Attorney General may turn to the opinion that AUMF simply outweighs the FISA statutes in this present political climate.  But in Morales v. TWA, Inc., the court found that “a general…clause cannot be allowed to supersede the specific…provision” (504 U.S. 374; 1992).   This applies, because while FISA gives specific guidelines as to how and when surveillance should be carried out, the AUMF applies the more general standard of "all necessary and appropriate force," as cited earlier.  The blanket provision mentions no details, and thus, the FISA statutes must win out.  One may then ask why the administration did not simply seek an amendment to FISA, allowing for domestic surveillance.  The Attorney General has made the claim that this was not sought because the Congress advised that such an amendment would not pass (Liptak, New York Times).  How, then, can he reconcile (1) that the Congress implicitly allowed for the wiretaps, but (2) would not amend to allow for them?  If Congress really wanted the surveillance to take place, would they not be more than happy to change the laws to allow for them?  His logic fails in this regard.
   
...continued...

[riceowl]

The Attorney General has also suggested that the Constitution allows for the President (as commander in chief) to do whatever he thinks is necessary in the war on terror, but this argument is dubious at best.  Yes, in Article II of the Constitution, the president is vested with “executive power” and is “Commander in Chief” (U.S. Constitution, Art. II).  However, in Article I, Congress is the body given the power “to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States” (Sec. 8 ).  So how does one decide where the President’s authority ends and Congress’s begins?  For this, one turns to the precedent of Youngstown Sheet & Tube Co. v. Sawyer, where President Truman similarly ascertained that he made an “action…necessary to avert a national catastrophe” (343 U.S. 579; 1952).  At the time, Justice Black stated that “if the President had authority to issue the order he did, it must be ground in some provision of the Constitution.”  Justice Frankfurter added that “It is quite impossible…when Congress did specifically address itself to a problem…to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld.”  The FISA was an example of Congress “consciously withholding” the authority of anyone to authorize warrantless domestic wiretapping.  So the administration’s effort to do so goes against everything the 1952 case tried to prevent from happening.  Because Congress had already made illegal such practices, the President had no authority to circumvent the courts.  The “inherent authority” of the President is not exclusive, and especially does not extend to acting in opposition to the areas where Congress has already legislated.   
   Finally, the issue over whether or not domestic warrantless wiretapping can be legally done can be settled by its mere raising of constitutional questions.  The fact is that while the FISA raises no serious constitutional issues, the domestic wiretapping justification in AUMF goes against the fourth amendment.  As stated, the Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (U.S. Constitution, Amendment IV).  By allowing the NSA to conduct surveillance on people in the United States, the President goes against this amendment.  In U.S. v. Oakland Cannabis Buyers’ Coop., the Court found that serious constitutional issues cannot be avoided as this “has no application in the absence of statutory ambiguity” (532 U.S. 483; 2001).  As there is nothing ambiguous about the FISA’s role in surveillance, the authorization to wiretap goes against this.  The President could have avoided any constitutional questions by going through FISA.  Since he did not, he wavers on denying the fourth amendment.
   Mr. Gonzales has had several options on how to argue his case, and has used most of them.  Unfortunately, there is not one that is constitutionally sound.  While one can appreciate that desperate times call for desperate measures, one can not avoid that these measures denied people of their constitutional freedoms.  By authorizing domestic warrantless surveillance, the President went against many preceding opinions of the United States Supreme Court.  As such, the Court must agree with the Senator from Pennsylvania’s opinion that the justification for wiretapping disregards law and reason.