To explain what I think is at stake with the Feingold censure resolution, I was going to write a post explaining the legal theory that links the NSA program and the torture scandals. It turns out that several months ago Marty Lederman (who I like to think of as the head of the OLC-in-exile) explained it more clearly than I can:
Their argument -- just to be clear -- is that FISA, and the Torture Act, and the Uniform Code of Military Justice, and the federal assault statute, and the War Crimes Act, and the 60-day-limit provision of the War Powers Resolution -- and even the 9/18 AUMF itself (to the extent it is read, as it ought to be, as in some respects limiting the scope of force -- and treaties governing the treatment of detainees, and (probably) the Posse Comitatus Act, and who knows how many other laws, are unconstitutional to the extent they limit the President's discretion in this war. In OLC's words -- written just one week after the AUMF was enacted -- neither the WPR nor the AUMF, nor, presumably, any other statute, "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response." "These decisions," OLC wrote, "under our Constitution, are for the President alone to make."
This is the legal theory that originally justified the NSA program. It is exactly the same legal theory that John Yoo relied on when he calmly told Jane Mayer: “It’s the core of the Commander-in-Chief function. [Congress] can’t prevent the President from ordering torture.”
We first became aware of this argument in the famous OLC torture memo. At the time, shortly after the Abu Ghraib photos were released, it was a source of great embarrassment and almost universal condemnation. On this site, the ever-moderate von (hi von!) wrote this evaluation:
The DoD memorandum essentially contends that the President can choose to disregard any law that he, in his sole opinion, believes to conflict with his duties as Commander in Chief. Let that sink in. The President has full discretion to disregard law whenever he, and he alone, believes that (in his sole opinion) the law conflicts with what he deems to be the proper scope of his duties as Commander in Chief. No Court review. No appeals. The President controls.
This is not rule by law; it is rule by men. It is, roughly speaking, an argument for Fascism. As you might expect, it is an argument that is thoroughly and deeply flawed not only under the Consitution (under any reasonable reading thereof) but also under the entire course of Anglo-American law, post Blackstone. This is not a close or difficult question. The argument advanced by this memorandum is one that a half-drunk first year law student at a fourth tier law school could convincing[ly] retort between hits off his bong.
Other commentators used less colorful language, but that was the general reaction.
The administration never really abandoned the argument, though. They wrote a new memo repudiating most of the OLC memo, but it did NOT repudiate the commander-in-chief argument. It omitted it, and said that it had been "unnecessary"--but that's not the same thing. At his confirmation hearings, Attorney General Gonzales was asked over and over repudiate the unlimited-commander-in-chief-power argument. He wouldn't do it.
It wasn't until December, though, that the commander-in-chief override made its grand comeback.
The Attorney General used it to defend the NSA program, arguing at a press conference* that even if the AUMF had not supposedly partially suspended FISA, "the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity."*
The President referred to it in his signing statement to the McCain Amendment:
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.
To quote Lederman again:
Translation: I reserve the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks. [UPDATE: Or, as Matthew Franck eagerly puts it over at the National Review, "the signing statement . . . conveys the good news that the president is not taking the McCain amendment lying down."]
And now this argument is NOT regarded as an embarrassment. Not anymore. Patrick Leahy tried to get Supreme Court Justice Alito to reject it decisively at his confirmation hearings, but he did not succeed:
LEAHY: Let's assume there's not a question of the constitutionality of an enactment. Let's make it an easy one. We pass a law saying it's against the law to murder somebody here in the United States. Could the president authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a presidential pardon?
ALITO: Neither the president nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional. And I think you're in this area -- when you're in the third category, under Justice Jackson, that's the issue that you're grappling with.
LEAHY: But why wouldn't it be constitutional for the -- or wouldn't it be constitutional for the Congress to outlaw Americans from using torture?
ALITO: And Congress has done that, and it is certainly -- it is certainly an expression of the very deep value of our country.
LEAHY: And if the president were to authorize somebody or say they would immunize somebody from doing that, he wouldn't have that power, would he?
ALITO: Well, Senator, I think that the important points are that the president has to follow Constitution and the laws, and it is up to Congress to exercise its legislative power.
But as to specific issues that might come up, I really need to know the specifics. I need to know what was done and why it was done and hear the arguments of the issue.
Senator Pat Roberts, chair of the Senate Intelligence Committee, has relied on the commander-in-chief override theory to declare that FISA is unconstitutional. Bill Frist agrees; he has concluded that the NSA program is "constitutional and legal." Arlen Specter isn't quite sure, but he thinks it's a serious possibility. Most Democrats say we don't know for sure, and we need to wait for the results of the intelligence committee investigation--this despite the fact that the intelligence committee voted last week never to hold that investigation.
In short, the commander-in-chief override has become downright reputable in its old age.
There's this one uppity Senator, though, who's just not budging an inch:
The President's shocking admission that he authorized the National Security Agency to spy on American citizens, without going to a court and in violation of the Constitution and laws passed by Congress, further demonstrates the urgent need for these protections. The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king.
On behalf of all Americans who believe in our constitutional system of government, I call on this Administration to stop this program immediately and to fully cooperate with congressional inquiries and investigations. We have had enough of an Administration that puts itself above the law and the Constitution.
What a lunatic. What a traitor. What a cynical opportunist. It's no wonder the rest of the Democrats** are literally running and hiding.
*In response to some commenters' questions about whether the NSA program violates FISA, note these remarks from the same press conference, as described by Lederman:
In his comments this morning, the Attorney General conceded that the NSA program would violate FISA ("Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.")
**Except Tom Harkin. Yay for Tom Harkin! If I recall correctly Harkin was Wellstone's best friend in the Senate, so it's nice to see him have Feingold's back when almost no one else does.