Tuesday, January 17, 2006

Gonzales: No special prosecutor

Gonzales Responds to Gore's Speech:
"[T]he deputy attorney general testified before Congress that the president does have the inherent authority under the Constitution to engage in physical searches without a warrant[*]. And so, those would certainly seem to be inconsistent with what the former vice president was saying today." Gonzales also asserted, "It's my understanding that during the Clinton administration there was activity regarding physical searches without warrants."
* in the absence of a law establishing a procedure for obtaining such warrant on national security grounds.

That footnote was not something Gonzales mentioned, but if a pitiful little non-lawyer like myself is able to work that out, I bet he could figure it out, too.

Clinton authorized warrantless searches of, for instance Aldrich Ames's home because there was no statutory way to get a FISA warrant for a physical search. So he authorized the searches. That was in 1993.

Congress then passed an amendment to FISA which covered physical searches, in 1995. If he conducted warrantless searches after 1995, he'd have broken the law. Before 1995, the law wasn't written to cover this circumstance.

FISA was passed in 1978. Various legal cases emerging from the Nixon era held that there might be some inherent presidential authority to order warrantless taps on international calls in the interest of national security.

When FISA passed, the Judiciary committee wrote (via the Congressional Research Service report):

The basis for this legislation is the understanding — concurred in by the Attorney General — that even if the President has an “inherent” constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance.

Essentially, the case the Clinton administration was describing, and which Gonzales is describing by extension, is in the second of Judge Jackson's famous categories (previously discussed here):
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers,
The only way the President could engage in warrantless searches or wiretaps now would be if that interpretation was wrong, because that moves such searches into category three:
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.
Let's just create an analogy. The president isn't allowed to shoot a guy in the head just because.

Does anyone dispute this?

OK. The president has final power to stop or reschedule a judicially ordered execution, but without a proper sentence from a judge, he can't force an overdose on anyone.

He can, after notifying Congress, order the CIA or Special Forces to shoot a guy, or order the military to bomb a country flat. But he can't pick up a gun and shoot a guy for no reason.

He needs some sort of authorization from within the government.

This runs right up against some frames we like to use. We like to see the President as a strong father, and strong fathers don't wait for authorization.

Our Founding Fathers understood that, and they understood the dangers that posed. That's why they created interlocking checks and balances. They hoped they made it impossible for a President to act without explicit authorization.

And for people who love to yammer about "originalism" to ignore the plainly stated views of the Founding Fathers is worse than disingenuous.