Each branch of government has inherent implied constitutional powers. Thus, the concept of presidential prerogatives or inherent powers is not new. The problem lies with Bush's version of presidential prerogatives, which he refers to as the unitary executive who has presidential prerogatives which enables the Executive Branch to essentially be the only branch of government. If the president can not or does not want to work with Congress to accomplish objectives, then the president can govern by executive orders, signing statements and regulations. This is in accordance with the conservative prerogative theory that 3 Article II clauses (executive power vested in President, oath to protect and defend Constitution, and Commander in Chief) vest Presidents with inherent authority that "has never been defined or enumerated" and cannot be defined because the scope of the power is dependent upon the "conditions and problems existing at the time."

1.  Congress and Bush may have different interpretations of the meaning of authority and lawfulness in the telecom immunity clause.

Section 202 of the telecom immunity bill (S.2248) is comprised of three elements which the AG must certify (which generally means to attest, testify or vouch for in writing) to the court before the telecom is entitled to immunity:  (1) the telecom must have provided assistance for an intelligence activity involving communications that Bush authorized during 2001-2007, which was designed to detect or prevent a terrorist attack or preparations and (2) the telecom assistance was described in a "written request or directive" from the AG or an "element of the intelligence community" to the telecom provider; and (3) this request or directive "indicated" that the activity was "authorized" by Bush and "determined to be lawful."

The Bushies and some lawmakers argue that telecom immunity merely provides fairness to patriotic telecoms who complied in good faith on government assurances of authority and lawfulness.  As explained in my first diary on Telecom Immunity Gives Bush Immunity, the problem with the good faith rationale is that twice before Congress considered but rejected providing retroactive immunity to corporations in two cases that were virtually identical to this case of telecom immunity. The same reasons of good faith based upon government assurances were rejected as grounds for providing immunity. Moreover, as Senator Feingold has explained, the telecoms already have immunity under existing law.

Yet, the Senate Intelligence report (pdf file) states that the immunity clause simply recognizes that the telecoms acted in good faith.  The report further states that the committee "does not intend for this section to apply to, or in any way affect, pending or future suits against the Government as to the legality of the President's program," but is limited to civil suits against telecoms. The report also provides that section 202 does not assess the legality of Bush's surveillance program.

It would be nice if this Congressional intent were stated in the immunity clause. It has happened before that the WH said X to Congress during negotiation and drafting of bills, and then stabbed Congress in the back with a presidential signing statement that interpreted the clause or bill in a different manner.

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills -- sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.

''He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises -- and more often than not, without the Congress or the press or the public knowing what has happened," said Christopher Kelley, a Miami University of Ohio political science professor who studies executive power.

(See also, Annotated text of signing statements for each year and archive of signing statements.)

2.  The declassified FISA documents contain elements of Bush's unitary theory and may show how Bush interprets authority and lawfulness in the telecom immunity clause.

A 2005 article by The New York Times broke the story on Bush's illegal domestic spying and makes more sense based on what we now know. In 2002, Bush secretly authorized the NSA to eavesdrop and monitor international telephone calls and e-mails on Americans without compliance with FISA by signing an Executive Order (EO). This EO is predicated on "classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups."   These are probably some of the same classified documents that only a few lawmakers have been permitted to read.  In 2002, the Justice Dept. lawyers revealed that it was the unitary theory which vested Bush with authority for warrantless wiretaps in national security cases in a "little-noticed brief in an unrelated court case."

In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

It should be noted that before FISA was enacted, courts did discuss whether a president had inherent authority with regard to foreign surveillance.  These decisions obviously did not address FISA requirements and did not address presidential authority for warrantless domestic surveillance or the legality of the NSA collection methods.

Sen. Whitehouse was provided access to highly classified secret legal opinions on surveillance issued by the Office of Legal Counsel within the Justice Dept.  Sen. Whitehouse spent hours reading these documents as a "lawyer, as a former U.S. Attorney, legal counsel to Rhode Island's Governor, and State Attorney General." The documents remain top secret, but Sen. Whitehouse obtained declassification of 3 legal propositions from these OLC opinions:

1.      An executive order cannot limit a President.  There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order.  Rather than violate an executive order, the President has instead modified or waived it.

2.      The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II.

3.      The Department of Justice is bound by the President's legal determinations.

 

Balkinization blogger Marty Lederman, a respected former lawyer in the Justice Dept. Office of Legal Counsel, says the 3 propositions were permitted to be declassified because the "OLC statements in question are boilerplate, and fairly uncontroversial."  As is often the case with Bush, the problem is not advocating generally accepted legal doctrines, but the fact that Bush is the one interpreting the nature and scope of these powers with his own special twist. For example, many presidents have issued signing statements, but not to proclaim unitary executive powers.   Lederman acknowledges this fact:

The problems in the Bush Administration are not that the President is interpreting the Constitution himself, or that he asserts the power to resist statutes that in his view unconstitutionally impinge on his constitutional prerogatives, but instead that the substantive views of the Administration on the nature and scope of those executive prerogatives are simply wrong, and that he his adopting and acting upon such views in secret.

In Bush's case, the substantive view is a unitary theory of presidential powers that overrides the other two branches of government.  Sen. Whitehouse explains these 3 principles:

1.      An executive order cannot limit a President.  There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order.  Rather than violate an executive order, the President has instead modified or waived it.

Whitehouse noted that the Protect America Act provides no statutory limitation of Bush's "ability to spy on Americans traveling abroad whenever it wants, for whatever purpose."  The failure to place limitations on Bush means that Americans traveling abroad do not have any statutory protections from government wiretapping:

None if you're a businesswoman traveling on business overseas, none if you're a father taking the kids to the Caribbean, none if you're visiting uncles or aunts in Italy or Ireland, none even if you're a soldier in the uniform of the United States posted overseas.  The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.

The only limitation which now exists on Bush's spying powers is Executive Order 12333, which states that "the administration will not wiretap Americans overseas unless the Attorney General determines that that person is an agent of a foreign power."

However, proposition 1 states that Bush does not have to comply with his own EOs.  As Sen. Whitehouse stated:

In other words, the only thing standing between Americans traveling overseas and a government wiretap is an executive order that this President believes he is under no obligation to obey, and may secretly disregard.

 

Moreover, even if Bush violates one of his own EOs, he has never violated his EO. Circular logic, but when Bush violates an EO, his violation is automatically transformed into permissible conduct of a modification or waiver of the EO. As Sen. Whitehouse stated:

"Whenever (the President) wishes to depart from the terms of a previous executive order," he may do so because "an executive order cannot limit a President."  And he doesn't have to change the executive order, or give notice that he's violating it, because by "depart(ing) from the executive order," the President "has instead modified or waived it."

Even our new AG Michael Mukasey --- before he was approved for AG --- disagreed with Bush on the proper procedure to modify an EO:

Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

One problem is that this power is not limited to wiretapping. Bush has issued tons of EOs on issues across the board. Bush often cites his EOs as assurances that his administration is complying with standards. Now we know that for Bush even noncompliance with his own EO is automatic compliance as well.

Lederman noted that Bush's secret noncompliance with EOs may not be unconstitutional or illegal, but does constitute a serious action of "constitutional bad faith" to mislead both the public and Congress because if Bush publicly rescinded some EOs, there may be a public outcry that would move Congress to take action. By acting secretly, Bush can prevent Congress from making changes.  

2.      The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II.

This 2nd principle is exactly what the telecom immunity clause says: That the Executive Branch (Bush or his legal counsel) can determine whether an action, such as telecom domestic surveillance, is a lawful exercise of Bush's constitutional authority. The Senate Committee report confirms that it was the Executive Branch, not the courts, which determined whether the activities authorized by Bush were lawful:

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President.

Sen. Whitehouse could not believe the audacity of proposition 2:

Yes, that's right.  The President, according to the George W. Bush OLC, has Article II power to determine what the scope of his Article II powers are.

Never mind a little decision called Marbury v. Madison, written by Chief Justice John Marshall in 1803, establishing the proposition that it is "emphatically the province and duty of the judicial department to say what the law is."  Does this administration agree that it is emphatically the province and the duty of the judicial department to say what the President's authority is under Article II?  No, it is the President, according to this OLC, who decides the legal limits of his own Article II power.

The question "whether an action is a lawful exercise of the President's authority under Article II," is to be determined by the President's minions, "exercising his constitutional authority under Article II."

Lederman says that Proposition 2 is simply a correct statement of the President's constitutional obligation to ensure that laws and the Constitution are faithfully executed, which includes the "responsibility to assess and to protect the President's own prerogatives" against "inadvertent or intentional congressional intrusion."  However, Bush does not use any of the key words typically associated with this principle, such as the protection of presidential prerogatives from congressional intrusion. Rather, Bush simply states that he has Article II powers to determine whether he is lawfully exercising Article II powers.

For purposes of comparison, this is how the Clinton administration phrased this principle:

"Executive branch lawyers . . . have a constitutional obligation, one grounded not in parochial institutional interests but in our fundamental duty to safeguard the liberty of the people, to assert and maintain the legitimate powers and privileges of the President against inadvertent or intentional congressional intrusion."

3.      The Department of Justice is bound by the President's legal determinations.

 

Proposition 3 is contrary to the foundation of our country as a nation of laws, not men and women. As stated by Sen. Whitehouse:

This nation was founded in rejection of the royalist principles that "l'etat c'est moi" and "The King can do no wrong."  Our Attorney General swears an oath to defend the Constitution and the laws of the United States; we are not some banana republic in which the officials all have to kowtow to the "supreme leader."  Imagine a general counsel to a major U.S. corporation telling his board of directors, "in this company the counsel's office is bound by the CEO's legal determinations."  The board ought to throw that lawyer out - it's malpractice, probably even unethical.

Sen. Whitehouse summarized Bush's unitary prerogatives:

In a nutshell, these three Bush administration legal propositions boil down to this:

1.  "I don't have to follow my own rules, and I don't have to tell you when I'm breaking them."

2.  "I get to determine what my own powers are."

3.  "The Department of Justice doesn't tell me what the law is, I tell the Department of Justice what the law is."

3.   Bush wants Congress to codify his legal "authority" of unitary executive theory.

Over the past years, Bush has maintained that he has legal authority based on the authorization of force resolution and his unitary executive theory.  Congress has maintained that it has not provided any legislative authority for Bush to take these actions. Days after the illegal domestic spying story broke, and Bush claimed his presidential prerogatives, Sen. Feingold responded that Congress had not provided any legislative authority for Bush to take these actions and Bush could not simply make up legislative or constitutional authority.

The stumbling block for Bushie is that there is no express statutory or constitutional provision which he can cite to validate his theory.  In 2002, it was reported that a FISA court cited Bush's inherent constitutional powers:

Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, cited "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

That quote sounds like a victory for Bush. However, the Congressional Research Service issued a report (pdf file) on "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information," which concluded that the FISA court assumed that Bush had inherent authority to conduct foreign intelligence electronic surveillance.  The FISA court did not address the relevant issue of whether Bush had constitutional authority to "authorize warrantless surveillance in the United States of U.S. citizens and legalized immigrants, notwithstanding FISA's restrictions."  Moreover, the "2002 FISA court decision relied on pre-FISA rulings on electronic surveillance, making its statements about presidential authority less relevant" according to the CRS. Thus, in a FISA court, which is not an adversarial proceeding but only presentation of the government's case, Bush was not able to obtain a ruling favorable to his unitary executive theory. The CRS confirmed that "no court has yet addressed the legality of the conduct the Bush administration" committed in its domestic surveillance program.

Thus, in 2006, the Whitehouse stated that it wanted FISA reform legislation to "codify" Bush's presidential authority:

"We're eager to work with Congress on legislation that would further codify the president's authority," Ms. Perino said. "We remain committed to our principle, that we will not do anything that undermines the program's capabilities or the president's authority."

Scott McClellan repeated the same refrain:

MR. McCLELLAN: I'll let Senator DeWine talk more specifically about what he is proposing. He has talked publicly about some of those ideas. We want to continue to work with him and others, as I said, on legislation that would codify into law what the President's authority already is. And I think that you're going to be hearing more from members in a short amount of time on some of their ideas. And Senator DeWine, I understand, is coming forward with a legislative proposal soon, so I'll let him speak to that.

Bush has maintained for years that he has unitary executive powers to take actions contrary to express provisions in legislation and the federal Constitution.  Classified and declassified legal opinions show that Bush's actions to "authorize" the warrantless surveillance were based on this unitary theory. Why does Bush need to codify into law his existing powers?

What the Bushies want is to codify the "authority" unilaterally assumed by Bush when he issued his EO to "authorize" the domestic spying.  This has been attempted before. In 2001, Democrat Jane Harman introduced H.R. 3468, Foreign Terrorist Military Tribunal Authorization Act of 2001 (which never became law) to codify authority assumed by Bush when he issued an EO authorizing military tribunals:

On December 12, 2001, Congresswoman Jane Harman (D-CA) introduced H.R. 3468, the Foreign Terrorist Military Tribunal Authorization Act of 2001 (Act), which would authorize the president to convene military tribunals for trial outside the United States of persons who are neither U.S. citizens nor lawful resident aliens, and who are apprehended in connection with the September 11, 2001, terrorist attacks against the United States. The Act, currently pending in House of Representatives committees, would serve to codify the authority assumed by President George W. Bush in his Executive Order of November 13, 2001. The Executive Order, Detention, Treatment, and Trial of Certain Non-¬Citizens in the War Against Terrorism (Executive Order), authorizes the trial of suspected terrorists by military commissions.

Whether called Congressional ratification or codification of the authority assumed by Bush, this telecom immunity clause may provide more than just immunity to telecoms from civil lawsuits.  In my first diary, I speculated that Bush wanted to codify his unitary theory. These 3 declassified principles makes that guess a little stronger. We should not have to theorize about the ramifications of this telecom immunity.  There is no need to rush telecom immunity, even if there is a valid need to provide unprecedented retroactive immunity for telecoms. Why not let lawmakers and the public read the documents which purport to provide the legal grounds for domestic surveillance and allow a debate on the issues so that we can sort out this mess.