Traitors or Hypocrites or Just Small Men

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 “fail[ed] 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 my friend Bryan Cunningham, a terrific 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 on Monday, when AG Alberto Gonzales will be testifying before the Senate Judiciary Committee, they entire Cunningham letter is well worth reading. Especially noteworthy is Dellinger’s 1994 OLC opinion, which states, for example:

…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 afore-described 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.”