In his confirmation hearing last week, the following exchange took place between Senator Leahy and Attorney General nominee Michael Mukasey:
LEAHY: . . . where Congress has clearly legislated in an area, as we've done in the area of surveillance with the FISA law, something we've amended repeatedly at the request of various administrations, if somebody -- if it's been legislated and stated very clearly what must be done, if you operate outside of that, whether it's with a presidential authorization or anything else, wouldn't that be illegal?
MUKASEY: That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.
Following the hearing, Leahy wrote to Mukasey asking him to clarify his answer to this clearly important question. Today, Leahy's office released Mukasey's tortured (if you'll pardon the pun) response:
As I tried to stress during the hearing, government works best, and with the greatest legitimacy, when the branches act cooperatively, each with respect for the other's constitutional prerogatives. I agreed more than once that consultation between the Committee and the Department often can prevent issues from evolving into controversies. FISA appears to be a model of such cooperation and mutual respect. Thus, foreign intelligence gathering is a field in which the executive branch is regulated but not preempted by Congress. This approach has served us well.
As you noted, Congress has amended FISA several times at the request of the executive branch. To the extent FISA may be (or become) inadequate to the task of responding to threats we confront, it is imperative that the branches work together to amend the statute. I am not of the view that the President's constitutional authority to conduct the foreign affairs of the United States and protect our national security is inevitably in tension with Congress's power to legislate in those same areas. To the contrary, if confirmed, I would be a strong advocate for a cooperative approach to Congress in this and other matters of national security. During the hearing, I mentioned the danger of heedlessly carrying a principle off a cliff. There is no reason to provoke a constitutional controversy over a process that works well most of the time, that can be fixed where it does not work, and that involves the security of the American people.
That is what we lawyers call a non-responsive answer. All Mukasey is saying here is that the question of whether the president has the authority to violate a duly enacted statute can be avoided if Congress gives the president all the authority he asks for. That's undoubtedly true, but completely unhelpful. What Leahy wants to know (and deserves to know) is whether Mukasey believes that the President has the authority disregard FISA. It's great that Mukasey thinks the President should "work with" Congress to amend the law when he determines it is no longer "adequate," but the question is: at the end of the day, is the President bound to follow the law, whether or not he gets the amendments he seeks? And that's the question Mukasey goes out of his way not to answer.
Moreover, it's worth remembering how this constitutional controversy arose in the first place. In the immediate aftermath of 9/11, the Bush administration and Congress appeared to do exactly what Mukasey suggests is the ideal way of handling this issue. The Justice Department pointed to a number of aspects of FISA that it found to be inadequate and outdated and it asked for amendments. Congress obliged and passed the Patriot Act, which contained a number of key amendments to FISA. When he signed the Patriot Act into law on October 26, 2001, President Bush said:
We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike. . . .
The existing law was written in the era of rotary telephones. This new law I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology.
Yet as we now know, over a month earlier, on September 25, 2001, John Yoo had completed a legal opinion authorizing the launch of a surveillance program that clearly violated FISA. Despite the fact that they were actively negotiating amendments to FISA at the time, the Bush administration never even proposed amending FISA in a way that would have allowed for this new program.
Indeed, after the Patriot Act was signed, the Bush administration, for years, gave every outward indication that it was happy with the state of the law. As Glenn Greenwald first reported, in 2002 the Bush administration actually opposed an amendment to FISA proposed by Senator Mike DeWine that would have lowered the standard needed to secure a warrant. Testifying on behalf of the administration, James A. Baker of the Justice Department stated that the amendments included in the Patriot Act were sufficient and that they had "enabled the government to become quicker, more flexible, and more focused in going 'up' on those suspected terrorists in the United States."
And in 2003, John Yoo himself noted, in an op-ed in the Wall Street Journal, that "[n]o court has ever found FISA to be unconstitutional, and just last year a special panel of federal appeals court judges reviewed the Patriot Act's central modification of FISA and unanimously found it constitutional."
Yet when the existence of the NSA warrantless surveillance program was first reported in December of 2005, the Bush administration insisted that it was forced to bypass FISA because the law was outdated and inadequate, an obsolete relic from the era of rotary telephones. And folks like John Yoo went out and argued that to the extent FISA purports to limit the President's authority, it is and has always been unconstitutional.
This is the administration that Mukasey will be joining, if confirmed. He writes that "FISA appears to be a model of . . . cooperation and mutual respect" and that "[t]his approach has served us well." Perhaps that's true in some parallel universe, but in this one, the Bush administration demonstrated zero respect for Congress and the rule of law for the better part of six years. Not only was there no cooperation, there was outright deception.
I'm glad that Mukasey believes in working cooperatively with Congress, but there are many within the Bush administration who don't, and what we really need to know is whether Mukasey is prepared to authorize activity that goes beyond the authority Congress has provided.