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The Powerful and Obnoxious Odor of Mendacity: FISA and the Bill of Rights

By Blaine Kinsey (about the author)     Page 2 of 3 page(s)

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"(I)t would provide protections from lawsuits for telecommunications companies that have been sued simply because they are believed to have assisted our intelligence agencies after the 9/11 attacks. The bill does not, as some have suggested, provide blanket immunity for those companies. Instead, a lawsuit would be dismissed only in cases in which the attorney general certified to the court either that a company did not provide assistance to the government or that a company had received a written request indicating that the activity was authorized by the president and determined to be lawful. It is unfair to force such companies to face the possibility of massive judgments and litigation costs, and allowing these lawsuits to proceed also risks disclosure of our country's intelligence capabilities to our enemies."

At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress. At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, "is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president's Article II powers trump any ability by Congress to regulate the collection of foreign intelligence."

Brian Walsh, a senior legal fellow at the conservative Heritage Foundation who attended the same private meeting with Justice Department officials, acknowledged that the meeting - intended by the administration to solicit recommendations on the wiretapping legislation - became quite heated at times. But he said he thought the administration's stance on the president's commander-in-chief powers was "a wise course."

"They were careful not to concede any authority that they believe they have under Article II," Mr. Walsh said. "If they think they have the constitutional authority, it wouldn't make sense to commit to not using it."

"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. 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."

Cigarette smoking causes over 400,000 deaths each year, and alcohol-related deaths exceed 75,000 each year, but the two most destructive drugs in the United States are legal, and Prohibition was a dismal failure due to non-compliance by the public. We know that reducing the speed limit on our highways would save many thousands of lives every year, but the driving public would oppose such a policy because it would cause too much inconvenience. Obesity-related illnesses have become a major cause of premature deaths in the United States, but people are not afraid of food. Approximately 30,000 people are killed each year in the United States by citizens and other legal residents using guns, but most people accept that disarming the populace is unconstitutional and unrealistic (at least while Charlton Heston is still living).

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Although President Lincoln suspended the right of "habeas corpus" selectively during the Civil War (as did Jefferson Davis in the Confederacy), this course of action was quite limited in scope with respect to the existing danger, and the suspension of these rights was very limited in duration. However, our so-called "war on terror" is an endless war, and therefore we would be wise not to jettison essential elements of our Constitution because the thought of Islamic terrorists induces us to wet our pants. Unfortunately, there are many politicians who are betting that they will not pay any political price by trading away parts of our Constitution in return for votes from a cowering public.

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ABOUT THE AUTHOR: I am retired after working 33 years as a claims representative for the Social Security Administration, and I am a card-carrying member of the ACLU.

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