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Published: Sunday, 12/25/2005

Other presidents have run afoul of security laws

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

WASHINGTON - The controversy over President Bush's use of the National Security Agency to spy on Americans without a court order - a debate that raged on in Washington this week - arises from the special circumstances of the post-Sept. 11 "war on terror."

But the argument over the right of the President to act on his own to protect the nation's security is almost as old as the Republic, and more than once the federal courts have found that the president exceeded his legal authority in doing so.

Among the presidents who have been rebuffed in the Supreme Court are Abraham Lincoln, Harry Truman and - only last year - President Bush.

The courts eventually might also weigh in on whether Mr. Bush crossed a constitutional line by ordering the NSA to monitor the international telephone calls and e-mails of individuals in the United States, including U.S. citizens, without seeking a warrant from a secret federal court established by the Foreign Intelligence Surveillance Act. (The New York Times reported that some purely domestic telephone calls were also caught up in the NSA's electronic net.)

On Monday, Mr. Bush told a news conference that he had the "legal authority derived by the Constitution" to bypass the so-called FISA court when time was of the essence in detecting plots by terrorists and their confederates in the United States. His attorney general, Alberto Gonzales, offered a separate legal justification for the warrantless surveillance: a resolution passed by Congress on Sept. 14, 2001, authorizing the president to use "all necessary and appropriate force" against terrorists.

Although Congress may end up investigating the secret spying program, the legal issue - whether the President had the power to institute it, under an act of Congress or the Constitution or both - strikes a familiar chord with scholars. And while it's unlikely that the spying program will produce a case for the U.S. Supreme Court anytime soon, the court has shown itself willing to call presidents to task even when they say they are acting in the role as commander-in-chief.

In 1866, in the case of Ex Parte Milligan, the high court ruled that President Lincoln's administration had acted unconstitutionally two years earlier in putting a Confederate sympathizer on trial before a military commission even though civilian federal courts were still open and functioning.

In 1952, in Youngstown Sheet & Tube Co. vs. Sawyer, the court ruled that President Truman had exceeded his authority when, in the absence of legislation from Congress, he seized the nation's steel mills to avert a strike that would interfere with defense production.

And in June 2004, in the case of Hamdi vs. Rumsfeld, eight of nine justices rejected the Bush administration's claim that U.S. citizens detained as "enemy combatants" had no right to challenge their confinement in court. In the leading opinion in the case, Justice Sandra Day O'Connor, while agreeing that Congress had authorized the detention of American citizens as enemy combatants, said they were entitled to a hearing before a "neutral decision maker."

"War is not a blank check for the president," she added.

Significantly, Justice O'Connor's opinion was joined by the late Chief Justice William Rehnquist, a strong defender of presidential power on the court and the author of a book on civil liberties in wartime in which he observed that "the laws will not be silent in time of war, but they will speak with a somewhat different voice."

Given the secrecy of the NSA surveillance program, it may take some time for one of the Americans whose communications were intercepted to become aware of that fact and file a lawsuit. But the perennial issue of presidential power in wartime could come before the Supreme Court in other settings.

For example, Jose Padilla, the Brooklyn-born convert to Islam who has been imprisoned for 3 1/2 years by presidential order, has asked the high court to review his designation as an enemy combatant even though he now has been indicted on criminal charges.

If and when the court revisits this issue, it will have to deal with a built-in ambiguity in the Constitution. Article I gives Congress the authority to declare war, but Article II says that the president shall be "commander in chief."

In his opinion in the steel seizure case, Justice Robert Jackson wrote that figuring out exactly how the framers wanted to apportion power between Congress and the president "must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh."

In that same opinion, however, Justice Jackson set forth a three-part formula for judging presidential actions:

  • "When the president acts pursuant to an expressed or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."

  • "When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain."

  • "When the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."

    Where does the warrantless surveillance of Americans by the NSA fall along this continuum? Lawyers disagree, just as they disagree about the propriety of the program.

    Elliot Mincberg, general counsel for the liberal group People for the American Way, said that if the Bush administration thinks the FISA court is too slow. "We have a way to handle the problem. It's called going to Congress and changing the law."

    But Todd Gaziano, director of the Center for Legal & Judicial Studies at the conservative Heritage Foundation, suggested that, even under Justice Jackson's test, Mr. Bush could defend his actions by citing both his constitutional powers and Congress' "all necessary and appropriate force" resolution "which definitely gives him something extra."

    Harry Litman, a former U.S. attorney for Western Pennsylvania who now teaches at Rutgers Law School, thinks that the Bluish administration may have put itself in a bind with its legal defenses of the surveillance program.

    "It's a tough argument for the administration to win, and the two positions they are taking don't sit well together," Mr. Litman said. "On the one hand, they say they don't need any congressional approval because the president has inherent authority, but that argument seems to run right up against the Supreme Court's reaffirmation in Hamdi that a state of war is not a 'blank check' for the President.

    "On the other hand, they say that Congress did provide the authority with the post-Sept. 11 resolution, but that interpretation is quite a stretch, and it also forces them to contend with Congress's implicit disapproval of this unchecked Executive authority in FISA."

    Contact Michael McGough at: mmcgough@nationalpress.com or 202-662-7025.



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