Several former Clinton administration officials are among the group of "scholars of constitutional law and former government officials" who last week submitted a letter to Congress--posted on the New York Review of Books website--asserting that the Bush administration had "failed to identify any plausible legal authority" for the NSA program that does not comply with the warrant procedure mandated by Congress in FISA (the Foreign Intelligence Surveillance Act of 1978). One of those former Clinton administration officials is Walter Dellinger.
But in 1994, Dellinger was singing a different tune. As the Assistant Attorney General in the Clinton Justice Department’s Office of Legal Counsel, Dellinger explained in a written opinion to the White House, that: "The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency."
The opinion is excerpted at some length in a letter being submitted to the Judiciary Committee by Bryan Cunningham, a lawyer in Colorado who worked in both the Clinton and Bush administrations (in the NSA, CIA and DOJ). That letter is now available at the website of Bryan’s lawfirm,
www.morgancunningham.net.
The letter demonstrates that settled legal principles, developed by the federal courts since the Nation’s founding and cited by administrations of both political parties, most assuredly including the Clinton administration, emphasize that the President of the United States has plenary authority in the matter of foreign intelligence collection (and foreign affairs generally). Bryan also illustrates that separation-of-powers principles obligate the President to decline to enforce (i.e., to ignore) congressional statutes that encroach on or purport to limit the executive’s constitutional powers--just as FISA does. This, too, is a position the Justice Department has aggressively defended under both Republican and Democrat administrations.
Given the hearing scheduled to begin today, when Atty. General Alberto Gonzales will be testifying before the Senate Judiciary Committee, the entire Cunningham letter is well worth reading. Especially noteworthy is Dellinger’s 1994 OLC opinion, which states, for example:
QUOTE
Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.
First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has \"the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional.\" Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).
Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).
Also particularly interesting given the number of Clinton officials who signed the aforementioned letter condemning President Bush’s alleged flouting of the FISA wiretap statute, is another opinion issued by the Clinton administration’s OLC--this one in 2000. It’s discussed at length in the Cunningham letter. The Clinton OLC asserted, among other things, that even though the criminal wiretap statute (18 USC Sec 2510 et seq.) purports to limit the executive branch’s ability to disclose wiretap information, the President was free to ignore those statutory provisions where limiting \"the access of the President and his aides to information critical to national security or foreign relations . . . would be unconstitutional as applied in those circumstances.\"
Imagine the hysteria at the
New York Times if the Ashcroft Justice Department had issued formal legal guidance with such a title! Is there any doubt that we'd be hearing horrific reminders of Watergate, \"torture memos and domestic spying\"?
Alas, this is the title of the formal guidance issued by the CLINTON Justice Department in 1994, referred to above.
The Office of Legal Counsel Opinion, written by then-Assistant Attorney General Walter Dellinger to then-White House Counsel Abner Mikva, is available online
here. Evidently, presidential power-- including the authority to ignore statutory restrictions that would curtail the President's inherent power to collect foreign intelligence information and protect national security--was worthy of vigorous defending when it was being wielded by a Democrat.
Also very worthy of perusing is a 2000 opinion rendered by the Clinton Justice Department, entitled: \"SHARING TITLE III ELECTRONIC SURVEILLANCE MATERIAL WITH THE INTELLIGENCE COMMUNITY.\" It is available
here. It includes these gems:
QUOTE
[I]n extraordinary circumstances electronic surveillance conducted pursuant to Title III may yield information of such importance to national security or foreign relations that the President's constitutional powers will permit disclosure of the information to the intelligence community notwithstanding the restrictions of Title III. . . . [T]he Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information. Because \"[i]t is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation,\" Haig, 453 U.S. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)), the President has a powerful claim, under the Constitution, to receive information critical to the national security or foreign relations and to authorize its disclosure to the intelligence community. Where the President's authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President's constitutional authority and should be read to be \"subject to an implied exception in deference to such presidential powers.\" Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.). We believe that, if Title III limited the access of the President and his aides to information critical to national security or foreign relations, it would be unconstitutional as applied in those circumstances.
Accordingly, law enforcement officers who acquire information vital to national security or foreign relations would be obliged to convey it to the appropriate superiors (e.g., the United States Attorney), who would report it to the Attorney General or Deputy Attorney General, who would in turn report it to the President or his designee. The President (or appropriate officials acting on his behalf, such as the Attorney General) would be authorized to share such crucial information with his executive branch subordinates, including intelligence community officials, to the extent necessary to discharge his constitutional responsibilities. Of course, this constitutional authority should not be exercised as a matter of course. Rather, it should only be exercised in extraordinary circumstances and with great care, and only where disclosure is necessary to the discharge of the President's constitutional responsibilities over matters of national security or foreign affairs. Even then, any contemplated exercise of this authority would necessitate careful consideration of the intrusion on privacy that might result.
Nor do we believe that disclosure of Title III information in these circumstances would violate the Fourth Amendment. Even if a disclosure of Title III information (as distinct from the seizure of the information) could otherwise violate the Fourth Amendment in some circumstances--a matter we do not address--we do not believe that this is an impediment to disclosure of Title III information of serious foreign affairs or national security import to the President. As we noted in our 1997 grand jury memorandum, the Supreme Court has recognized in other contexts that government actions overriding individual rights or interests may be justified where necessary to prevent serious damage to the national security or foreign policy of the United States. See Haig, 453 U.S. at 309 (invoking the principle that the Constitution's guarantees of individual rights do not make it a \"suicide pact\"); American Communications Ass'n v. Douds, 339 U.S. 382, 408-09 (1950) (to the same effect). We consider it very unlikely that the Court would conclude that the Fourth Amendment prohibits the disclosure of information vital to the national security or foreign relations of the United States.
