Faced with the most serious legal scandal of his administration, President Bush's impulse has been to stonewall. He has denied misleading the public when he insisted last year that any government wiretaps were conducted under court order, and his Justice Department has defended the legality of his domestic spying program in unequivocal terms. But the administration's legal defense is unconvincing—based on a willful misreading of Supreme Court precedents and
congressional intentions. It should not excuse Bush's actions. And Congress must make sure that it does not. Many legal questions have subjective and uncertain answers. But the legality of Bush's domestic surveillance program is not one of them. The program almost certainly violates the Foreign Intelligence Surveillance Act (FISA), which prohibits "electronic surveillance" of "any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States," except as authorized by law. Since the administration has admitted that it intercepted telephone calls to and from American citizens in the United States without getting a court order, it clearly broke the law.
Bush's most extreme defenders actually concede that he violated the law, but they insist that the president has inherent authority to ignore or break any law that restricts his authority as commander-in-chief under Article II of the Constitution. This is a radical extension of the arguments about unilateral presidential power championed by former Justice Department official John Yoo, a defender of the Bush surveillance program, and David Addington, Dick Cheney's chief of staff. But no court has ever suggested that the widely respected fisa law might be an unconstitutional infringement on the president's constitutional authority, and no president before Bush has had the audacity to press such an absurd claim.
In fact, recognizing its weakness, Bush's own Justice Department has not put much emphasis on this extreme constitutional contention. Instead, Attorney General Alberto Gonzales has insisted that the domestic surveillance program was, in fact, authorized by Congress—namely in the resolution passed after September 11 authorizing the president 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 September 11, 2001."
But Gonzales's case rests on a clumsy legal sleight of hand. In a letter to Senate and House intelligence committees at the end of December, the Justice Department attempted to draw a parallel between domestic surveillance and the detention of American citizens captured in the war on terrorism. In the letter, Justice confidently asserted that, in Hamdi v. Rumsfeld in 2004, "at least five justices concluded" that this resolution "authorized the President to detain a United States citizen in the United States." This is misleading in the extreme. In fact, five justices in the Hamdi case concluded that the resolution authorized the detention of an American citizen seized on the battlefield in Afghanistan. But Justice Antonin Scalia dissented, arguing: "I do not think this statute even authorizes detention of a citizen." And, in the related case of Jose Padilla, four other justices—Stevens, Breyer, Ginsburg, and Souter—explicitly said that the congressional resolution "does not authorize ... the protracted, incommunicado detention of American citizens arrested in the United States." Since five justices have rejected the Bush administration's effort to stretch the congressional resolution to authorize indefinite detention of citizens arrested in the United States, it seems likely that the same five justices would refuse to stretch the resolution even further to authorize illegal domestic surveillance.
It is unfortunate that it has taken such a bald abuse of executive power to rouse Congress to action. But, now that Congress has awakened at last, the Senate must follow through and ensure that the White House faces consequences for one of the most troubling examples of executive overreaching in the post-Watergate era. Senator Arlen Specter has promised to hold hearings on the domestic surveillance program in January. We are confident that those hearings will establish the illegality of Bush's domestic spying program, and we hope Congress will make its opposition clear. Washington has been convulsed by pseudopresidential scandals during the past few years, from the impeachment of President Clinton to the indictment of Scooter Libby. But the Bush administration's arrogant assertion that it has the power to ignore or break the law when it sees fit is a genuine scandal. And the president himself must be held accountable.