What happened to conservative legal theories?

by Glenn Greenwald

Listening to the Bush Administration and its defenders try to justify George Bush’s deliberate and ongoing violations of the law, one can’t help but notice that the Constitution and Congressional statutes sure do seem quite “flexible” in the hands of those seeking to defend him — a particular irony given how stridently Bush followers rail against such legal theories in other contexts. The defenses being dredged up to justify Bush’s law-breaking certainly are notable for the liberties they take with “conservative” principles of legal argument, as well as with how sharply they contradict the legal views which the Administration itself previously claimed it believed in.

The central problem for the Administration is that George Bush deliberately engaged in conduct which FISA clearly and expressly makes it a crime to engage in. All of the legalistic smoke screens aside, the issue really is that clear. That’s because the Administration cannot escape the plain and easy-to-understand language of Section 1809 of FISA:

“A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute.”

The Administration itself admits, as it must, that it engaged in electronic surveillance in a way that FISA expressly prohibits (by doing so secretly and without judicial approval). Section 1809 says that anyone who does that is guilty of a criminal offense. The law here is clear, and Bush’s violations of the law are equally clear. That presents the Administration with obvious difficulties in defending George Bush.

Because there is no plausible argument to make that Bush’s eavesdropping complied with the requirements of FISA, Alberto Gonzalez’s Justice Department is insisting that Bush had the legal right to eavesdrop on Americans in violation of that law. The DoJ issued a detailed Memorandum (.pdf) advocating its two principal legal theories as to why George Bush was permitted to engage in conduct which FISA makes it a crime to engage in. Both theories are about as far away as possible from the conservative legal principles which Bush has always claimed to believe in and which he says he wants his judicial appointees to apply.

Thus, we have one argument which claims that the 2001 Congressional Resolution authorizing military force in Afghanistan and against Al Qaeda (the “AUMF”) — a resolution which obviously never mentioned FISA, eavesdropping or surveillance, because it had nothing to do with any of those things — should nonetheless be “construed” and “interpreted” to have “impliedly” amended FISA by giving Bush an “exemption” entitling him to eavesdrop in violation of that law. And this argument is made even though the Congress which supposedly gave Bush that exemption says that it did no such thing, but to the contrary, expressly refused to provide that very authority.

And then we have the second Bush-defending argument: a dressed-up Constitutional theory which claims that George Bush has the “inherent” authority under Article II of the Constitution to violate Congressional law and eavesdrop on American citizens without the judicial oversight required by FISA – even though nothing in Article II mentions or even references the power to eavesdrop, the power to engage in surveillance, or the right to violate Congressional statutes. Indeed, the only express clause in Article II which seems to relate to this controversy is one that would rather strongly undercut the claim that the President has the right to violate Congressional law. That’s the part mandating that the President “shall take Care that the Laws be faithfully executed . . . “

So much for plain language and original intent. Who has time for those fancy constructs when George Bush needs defending? What we have in their place are implied, hidden amendments to laws which are silently buried in other laws which don’t even reference the law which it supposedly amended. And that’s backed up by a claim that George Bush has certain Executive powers which the Constitution doesn’t mention, but which instead, one presumes, are lurking quietly somewhere in Article II of the Constitution, maybe hiding behind some penumbras or sprouting from the evolving, breathing document.

Just how frivolous (and, for self-proclaimed judicial conservatives, hypocritical) these defenses are is demonstrated by the fact that the Bush Administration itself has aggressively argued against the exact legal theory which it is now trying to peddle in order to argue that Congress silently gave Bush an “exemption” to FISA. In the case of Breuer v. Jim’s Concrete of Brevard, 538 U.S. 691 (2003), the Administration vehemently (and successfully) argued in a Brief to the U.S. Supreme Court (.pdf), signed by Bush’s own Solicitor General, Theodore Olson, that a statute (such as FISA) cannot be “amended by implication” in the absence of clear Congressional intent to amend it. Thus, the Bush Administration itself just two years ago emphasized:

the cardinal rule that repeals by implication are not favored, and will not be found unless an intent to repeal is clear and manifest. . . . In the absence of an affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. In other words, where the two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.

So, before George Bush needed an excuse for intentionally violating FISA, this was the Administration’s own argument — that Congress cannot be said to have silently repealed its own law except where it subsequently passes a new law that is in direct conflict with the first one.

The Administration’s previous view of this matter is, of course, the precise opposite of its position now. The Administration now seeks to claim that the Congress — when it enacted its 2001 resolution authorizing the use of military force in Afghanistan and against al Qaeda — somehow intended with that Resolution to amend FISA and thereby silently and “impliedly” gave the Administration the right to engage in exactly the secret, warrantless eavesdropping on American citizens which FISA makes it a criminal offense to engage in.

What we really have from these paragons of Judicial Restraint trying to defend George Bush is everything except plain language and original intent – the very tools of construction which these “conservatives,” when not concocting legal defenses for the President, claim that they believe in. That’s because the plain language of the law is crystal clear (“A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute”) and leaves no doubt that George Bush broke it.

The clarity of this law is why the Administration is reduced to peddling legal theories which, no matter how they are sliced, amount to a claim that George Bush has the right to break the law. And to argue that he has that right, they are employing on George Bush’s behalf the very legal theories which advocates of “judicial restraint” have spent the last two decades ridiculing and attacking.