The Mythical Griffin

I will have a great deal to say in a future post about the legal argument advanced in John Eastman’s contribution to this roundtable, which seeks to cobble together a preclusive presidential power of foreign intelligence surveillance from spit, chicken wire, and dicta. But I want to rebut quickly one particular talking point I’ve seen repeated periodically since the debate over the NSA’s warrantless wiretapping program began five years ago, and which I’ve found particularly irritating because it so clearly inverts the meaning of testimony given by the late Attorney General Griffin Bell during the hearings leading up to the passage of the Foreign Intelligence Surveillance Act (FISA) of 1978. Eastman cites Bell as follows:

Griffin Bell, President Jimmy Carter’s Attorney General, testified during debate in Congress over the adoption of FISA that, although FISA did not recognize any inherent power of the President, it “does not take away the power [of] the President under the Constitution.”

The quotation is accurate enough, but some context is needed to determine precisely what Bell intended. Eastman clearly takes him to mean that the president has a constitutional power to conduct foreign intelligence surveillance that supersedes any statute enacted by Congress, and therefore is not affected by FISA. But there is an obvious alternate reading: that there simply is no preclusive presidential power to conduct domestic surveillance, and therefore no possibility of a conflict with FISA.

Fortunately, we can resolve the ambiguity decisively by referring to Bell’s own prepared testimony from those very hearings:

I would particularly call your attention to the improvements in this bill over a similar measure introduced in the last Congress. First, the current bill recognizes no inherent power of the president to conduct electronic surveillance…. Whereas the bill introduced last year contained an explicit reservation of Presidential power of electronic surveillance within the United States, this bill specifically states that the procedures in the bill are the exclusive means by which electronic surveillance, as defined in the bill, and the interception of domestic wire and oral communications may be conducted.

This really could not be clearer. If Bell had meant to suggest that the Constitution established a core presidential power to conduct electronic surveillance, immune to congressional regulation and therefore unaffected by FISA, then this passage would be utterly unintelligible. How, on that interpretation, could it possibly be an “improvement” to reject any explicit recognition of such inherent power, and instead assert that FISA provided the “exclusive means” for electronic surveillance? On such a reading, after all, Congress could never truly establish the “exclusive means” by which such surveillance might be conducted, since the president would always necessarily retain the constitutional authority to disregard the specified constraints.

Bell’s testimony makes sense only on the second interpretation: FISA does not “take away the power [of] the President under the Constitution” because the president has no preemptive power with which FISA could conflict. He has, at most, discretion to determine how such surveillance ought to be conducted in the absence of congressional direction. I find it telling that this decontextualized quotation has been so widely cited by supporters of Bush’s warrantless wiretapping program when Bell’s own testimony makes it clear beyond reasonable dispute that its intended significance was precisely the opposite of that imputed to it by presidential apologists. It is one thing, after all, to suggest that Bell’s interpretation of presidential powers was mistaken; it is quite another to twist his words so as to turn that interpretation on its head.

Also from this issue

Lead Essay

  • In his lead essay, Glenn Greenwald argues that the digital surveillance state is out of control. It intercepts our phone calls, keeps track of our prescription drug use, monitors our email, and keeps tabs on us wherever we go. For all that, it doesn’t appear to be making us safer. Accountability has been lost, civil liberties are disappearing, and the public-private partnerships in this area of government action raise serious questions about the democratic process itself. It’s time we stood up to do something about it.

Response Essays

  • John Eastman argues that the U.S. Constitution grants the President the authority to conduct surveillance of national enemies during wartime, including electronic surveillance. The Foreign Intelligence Surveillance Act cannot properly encroach on this power, and in fact it does no such thing. Warrantless wiretaps are therefore both strategically appropriate and constitutional. The nation remains at war, and such measures will remain appropriate at least until the end of hostilities.

  • Paul Rosenzweig argues that Glenn Greenwald has underestimated the continued oversight function of Congress, the media, and public-interest watchdog groups. He adds that effectiveness — while difficult to measure — appears to have been reasonably good. He concludes that privacy and civil liberties advocates need to save their fire for genuinely abusive programs, not mere threats or possibilities of abuse

  • Julian Sanchez draws our attention to the wider picture: The surveillance state extends beyond one or another potentially objectionable program. Its roots are structural, in the ease with which data can be collected and analyzed today. It is and will continue to be very important to get the legal and technological architecture of surveillance right. Creating mechanisms and institutions that safeguard the innocent and prevent abuses of power is an enormous challenge. Even building an abuse-free surveillance state would not do, because we cannot guarantee that it will be managed only by benign administrators.