As the
tooth-gnashing in the halls of Congress continues over the revelation that the
Bush administration violated the black letter prohibition of engaging in
warrantless surveillance ,
the final word in this debacle will obviously be issued, as it always is in
Constitutional crises, by the judicial system. The political process will wind
its painfully slow way towards the revelation of the truth about this breach of
the law, with hearings that will be hamstrung by partisan bickering, posturing
for the C-Span and nightly news show cameras and chest thumping by the usual
apologists for an administration run amok.
The party in power
cannot be expected, in spite of the courage of some of its members, notably
Arlen Specter, to show the
political will to hold the president accountable for his unlawful conduct. If
it had that will, it would
call for a special counsel to
investigate the president’s secret program. In the meantime, the truth will come
out in the marble-lined federal courtrooms of our country, beginning with the
one occupied by the court which was legislatively delegated the duty of
overseeing the process of approving surveillance activities.
The
FISA
court has already been wracked by the scandal, with
the resignation of one of its judges in
protest over the revelations that its authority was disregarded with impunity.
That court
has scheduled a session at
which it will be briefed by the administration about the whys and wherefores of
its extra-judicial activities. The judges of the
FISA
court will want to know whether any of the warrants it did approve were tainted
by the administration’s program of end-around surveillance, but also why the
administration thought it could ignore the court and the law which created it.
Remember that,
constitutionally
presidents only serve four year terms,
but federal judges are
appointed for life . In the
battle of tenure, the judges win, hands down, and it is precisely because of the
independence that gives them that they feel comfortable taking on the
occasionally power hungry executive branch of our government. If it’s “not
nice to fool Mother Nature,”
believe me, it’s a lot less nice to try to fool a federal judge.
If the government
cannot convince the FISA
court that it had the authority to go around it, or worse, that it didn’t base
any of its warrant requests on evidence tainted by
warrantless
surveillance, the administration faces the daunting prospect of having sanctions
imposed on it by the court, including referrals to the
Justice Department’s Office of Professional Responsibility
(that department’s internal ethics
monitor), contempt citations against the individual members of the executive
branch and of the justice department who abused their authority, and even
criminal charges, including perjury, for executing false affidavits required for
the issuance of those tainted warrants.
The Court has
already shown a lack of tolerance for government shenanigans when it severely
criticized the FBI for filing misleading
FISA
applications in 75 cases in
a case reported in 2002.
And, as has already been foreshadowed,
other courts will be asked to perform inquiries
into the use of tainted evidence from
warrantless
surveillance by defendants in a whole host of prosecutions, which may result in
some being abandoned and even in convictions being overturned.
It is well to remember that previous
abuses by presidential administrations were first brought to light, or at least
their discovery facilitated, by the judicial process. Nixon’s downfall was
catalyzed by the decisions of a
courageous federal judge,
“Maximum John” Sirica, who rejected Nixon’s assertion that “executive privilege”
immunized him from having to comply with a federal grand jury subpoena, a
decision that was
ultimately upheld by the Supreme Court,
And of course, had it not been for the Supreme Court’s decision in
Jones v. Clinton, which
allowed Paula Jones’ suit against the President to proceed, Clinton might not
have ever had to deal with the meaning of the word “is.”
One of the most
significant constitutional confrontations in history between the legislative and
executive branches of government, and in many ways the spitting image of the one
fomented by the current administration, occurred in 1952, when President Truman
sought to nationalize the steel industry during the Korean War, claiming he had
the “inherent” authority to do so as president and commander in chief, in what
was an end-around the
Taft-Hartley Act, Congress’
prescribed manner for resolving labor disputes. Congress had explicitly
rejected a seizure provision when it considered that law (just as the
current Congress rejected including domestic surveillance
when it considered giving Bush the
authority to use force against al
Qaeda.
The
Supreme Court disagreed with Truman,
and in a strongly worded concurring opinion, , Justice Robert Jackson uttered
these now-prophetic words:
[w]hen
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. Courts can sustain
exclusive Presidential control in such a case only by disabling the Congress
from acting upon the subject.
Presidential claim to a power at once so conclusive and preclusive must be
scrutinized with caution, for what is at stake is the equilibrium established by
our constitutional system. [emphasis supplied]
Responding to the
argument, similar to the one Bush makes (the “war on terrorism”), that Truman’s
actions were in reaction to exigent circumstances (i.e., the Korean war),
Justice Jackson dismissed that argument as follows:
[t]he
opinions of judges, no less than executives and publicists, often suffer the
infirmity of confusing the
issue of a power’s validity with the cause it is invoked to promote,
of confounding the permanent executive office with its temporary occupant. The
tendency is strong to emphasize transient results upon policies-such as wages or
stabilization-and lose sight of enduring consequences upon the balanced power
structure of our Republic. [emphasis supplied]
So let the games in the halls of Congress begin, but in the meantime, keep your
eye on the halls of the federal judiciary, because that’s where the issue of the
effect of and responsibility for extra-judicial, warrantless surveillance by
Bush and his cronies will be decided first.
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