Recent revelations regarding warrantless “domestic” electronic
surveillance are very disturbing, and the concern and anger expressed
by many is understandable. I put “domestic” in quotes because the
specific facts are unclear about the targets. Despite my
sympathies with these concerns, the lack of accuracy in media reports
also is disturbing.
Specifically,
the issue of whether the President violated the law is not solely
contingent on his compliance with the Foreign Intelligence Surveillance
Act (FISA). The United States Constitution preempts any
Congressional statute, and any complete legal analysis must include
whether the President has violated the Constitution. This point
may seem obvious, but over and over again, I am hearing that the
President violated the law simply because he did not comply with FISA.
Whether
the President violated FISA (probably) or the Fourth Amendment (very
questionable) is something that does need to be addressed.
However, don’t expect any concrete answers on the law. Since a
rational and compelling argument can be made that the President acted
within his Article II powers without violating the Constitution, it
will be nearly impossible to say he acted illegally. Orin Kerr has written a concise analysis of the legal questions.
The
argument by some for impeachment is simply irresponsible–it is tough
to make a case for impeachment if no law has even been broken (and very
little facts have come to light as of yet).
However, the Administration needs to do a much better job of
explaining its legal rationale or this issue is not going away anytime
soon. Justifying the surveillance based on the Congressional
resolution to use force is simply insulting–if that is the best they
can do, they are going to be in trouble. Fortunately for them,
there are sensible arguments that can be made–they need to make them
ASAP.
