Nemesis: The Last Days of the American Republic

and Regulation of the land and naval forces.”

Perhaps the closest thing to malpractice in Yoo’s theory is his failure to mention the most important legal precedent defining the balance of power between Congress and the president during wartime: the 1952 case Youngstown Sheet and Tube Company v. Sawyer.²⁷ During the Korean War, faced with the possibility of a strike that threatened to shut down the steel industry, President Harry Truman ordered the Department of Commerce to seize all steel plants and suspend the labor laws. The Supreme Court promptly declared that the president’s commander- in-chief powers did not extend to areas in which Congress had passed legislation—in this case, the Taft-Hartley Act of 1947, which regulated strikes—and that he had exceeded his authority.

Concurring in the judgment and the opinion of the court, Justice Robert H. Jackson wrote, “[T]he Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute [the president] also Commander-in-Chief of the country, its industries, and its inhabitants. He has no monopoly of ‘war powers,’ whatever they are.... His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy- making branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a president can escape control of executive powers by law through assuming his military role.” In the Youngstown case, both Justices Robert Jackson and Frankfurter, in their concurring opinions, quoted Justice Louis Brandeis’s dissent in the 1926 case Myers v. United States: “The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”

Among the many instances in which George W. Bush has ignored his oath of office—”I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States”—perhaps the most blatant has been the way he secretly authorized the National Security Agency (NSA), the country’s leading cryptological and signals intelligence agency, to eavesdrop on Americans without a court-approved warrant. Such warrants are required by the Fourth Amendment to the Constitution and by the Foreign Intelligence Surveillance Act (FISA), which President Jimmy Carter signed into law on October 25, 1978.²⁸ Except in terms of a raw expansion of basic presidential powers, it is close to inexplicable why Bush chose to ignore the FISA law, since it would have readily facilitated virtually anything he wanted to do in the way of wiretapping. Enacted in the wake of revelations that the federal government had routinely, if illegally, tapped the telephones of people who opposed the war in Vietnam, the FISA law was anything but a strong reaffirmation of the prohibition against unreasonable searches and seizures in the Bill of Rights.

As its title indicates, the Foreign Intelligence Surveillance Act allows the FBI and the NSA to listen in on American citizens in order to collect intelligence, and it set up a secret court to issue warrants based on requests from the intelligence community. From its inception in 1979 through 2004, the FISA court issued 18,742 secret warrants while denying only four government requests.²⁹ The court was originally made up of seven federal judges appointed by the chief justice of the Supreme Court; the USA Patriot Act of 2001 expanded that number to eleven. The judges’ identities are secret. They meet in total privacy behind a cipher-locked door in a windowless, bugproof, vaultlike room guarded twenty-four hours a day on the top floor of the Justice Department’s building in Washington, D.C. Everything they do is “top secret.”

The judges hear only the government’s side. The court makes annual reports to Congress, normally just two paragraphs long, that give only the total number of warrants it has approved. Beyond that, there is no congressional oversight of the court’s activities whatsoever. The law even allows emergency taps and searches for which a warrant can be issued retroactively if the government notifies the court within seventy-two hours. Compared with ordinary wiretaps, for which the government must provide a federal district court judge with evidence of “probable cause” that the person or persons under investigation are likely to commit a crime, the FISA process is weighted toward the government, not the citizen, and not surprisingly the secret court has authorized more warrants than all federal district judges combined.³⁰

Nonetheless, immediately following 9/11, the president issued a secret executive order authorizing the National Security Agency to tap at will into the private communications of American citizens. Unknown bureaucrats at the NSA make the decisions about who is to be tapped without any supervision by a court or elected representatives of the people. When newspaper reporters got wind of what the president had done, the White House intervened to try to keep the information secret. On national security grounds, the New York Times was asked to sit for more than a year on the story of how the NSA was violating the law. Finally, on December 6, 2005, when publication was imminent, President Bush summoned the Times s publisher Arthur Sulzberger Jr., and executive editor Bill Keller to the Oval Office and asked them to desist in the name of national security, the war on terror, and 9/11. But the president was unable to offer any sound legal basis for what he had done nor why the cover-up should continue. On December 16, 2005, a year late in terms of the public’s right to know, the New York Times finally printed the story.³¹ On December 20, one of the hitherto unknown FISA court judges, James Robertson, resigned in protest, a totally unprecedented action.

There is no obvious reason beyond trying to obtain pure power why the president chose to ignore FISA and go directly against an act of Congress. The syndicated columnist Paul Craig Roberts has speculated that Bush could not ask for warrants for the kinds of spying he wanted done because he had no legitimate reasons to offer even the lenient FISA court. Roberts suggests that he might have been using the spy apparatus of the U.S. government to influence the outcome of the 2004 presidential election or that he might have been collecting information on his Democratic Party opponents in order to blackmail them.³² Former senior adviser to President Clinton and Washington bureau chief of Salon.com Sidney Blumenthal believes the administration simply had no probable cause for the NSA surveillance. The court, after all, must adhere to the law and cannot simply authorize surveillance because the president or an intelligence agency wants to eavesdrop on someone. It is also possible that the administration wanted to avoid the FISA court because what evidence it had supporting probable cause had been obtained by torture, which conceivably might cause the court to reject an application (although these days no one should count on it).³³

Intelligence expert Thomas Powers, author of Intelligence Wars: American Secret History from Hitler to Al-Qaeda, has another theory entirely. He believes that the issue was not specific surveillance but the administration s desire to use the NSA to keep alive an ambitious Pentagon data-mining project called Total Information Awareness (TIA) after Congress (and the public) expressed outrage over its existence and in September 2003 ordered it stopped. TIA was the brainchild of John Poindexter, a former admiral and Ronald Reagan’s national security adviser, who was convicted of seven felonies for his part in the Iran-Contra affair but was exonerated on appeal. A computer fanatic’s ideal of “data mining,” TIA, as Poindexter imagined it, was to compile everything that could be known about a vast range of individuals and then comb through such mountains of data for correlations that the government might find suspect. One of TIA’s key collaborators was the National Security Agency, which supplied much of the data that went into its individual profiles.³⁴

On November 14, 2002, the New York Times s conservative columnist William Safire outlined the kind of data TIA sought: “Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book, and every event you attend—all these transactions and communications will go into what the Defense Department describes as a Virtual centralized grand database.’