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So What Does John McCain Think of the President's Constitutional Authority to Violate FISA?

By Jack M. Balkin

Not even the Shadow knows.

There has been a spate of stories in recent days endlessly recounting, parsing and debating a long series of statements by Senator McCain and his campaign about the extremely important question of whether the NSA's domestic surveillance program was unlawful or whether, instead, the President has the constitutional authority to disregard limits on electronic surveillance that Congress imposed in the Foreign Intelligence Surveillance Act (FISA). See, for example, Glenn Greenwald's, Charlie Savage's, and Orin Kerr's accounts.

The whole, sordid timeline is provided in this Jake Tapper blogpost today, in which Jake appends the McCain campaign's latest, even-more-ambiguous flip-flop.

Personally, I don't think the great debate about McCain really thinks about the question is worth the candle. If one examines the entire series of statements, it soon becomes evident either that the Senator and his staff have no earthly idea what they're talking about or (more likely) that they are quite deliberately being as ambiguous, equivocal and contradictory as possible, so that they can embrace whichever view is politically expedient at any given time and with any given audience -- so that they can, for example, tell Charlie Savage that the President has no dictatorial constitutional power to disregard FISA, while at the same time reassuring the Republican base (i.e., the National Review) that, as President, McCain would scoff at statutes that get in his way.

Let's give the McCain folks credit: they have managed to say just about everything and nothing at all -- all at once! The statements really have a kabuki-like feel to them. My favorite is this quote from a McCain spokesman to Charlie Savage: "To the extent that the comments of members of our staff are misinterpreted, they shouldn?t be read into as anything otherwise." That's a classic. Please don't try to parse it -- life is too short.

When we last left our protagonists, they were on a "President can do whatever he wishes" wave of the cycle.

Not so fast!

That aggressive posture precipitated the inevitable blowback in the New York Times and in the Blogosphere, and so, late today, a spokesperson, one so-called "Tucker Bounds" (the same guy who gave us the gobbledygook "To the extent" quote above) e-mailed ABC News to clarify that John McCain would adhere to the Constitution's checks and balances -- unless, of course, he wouldn't:

John McCain continues to believe, as he always has, that every President has the obligation to obey and enforce laws passed by Congress and signed by the President. His position has not changed. This is precisely why he believes that existing FISA laws need to be modernized to provide in statute clear guidance for future actions that may need to be taken, therefore making it less likely that any President would need to rely solely on constitutional authority to protect this country.

So far, so good. The President should have come to Congress to seek an amendment to FISA, rather than breaking the law as he did with the NSA program -- something he may not do under our Constitution.

Right?

Not so fast. To make sure that Andrew McCarthy and his crew are mollified, "Tucker Bounds" quickly added the following, second paragraph:

A number of courts, including the Foreign Intelligence Surveillance Court of Review, have recognized the President?s constitutional authority to conduct warrantless surveillance for foreign intelligence purposes, that is, foreign-based communications and phone calls. The courts? findings supported the Bush Administration?s efforts in the wake of September 11, 2001, and the McCain campaign has made statements referencing these findings.

Yikes. So the President did have the constitutional authority to violate FISA? Which is it?

Who knows?

For what it's worth, what "a number of courts" have said is simply that the President enjoys some level of constitutional authority to conduct warrantless surveillance for foreign intelligence purposes where there is no statute limiting that authority. There is some dispute within the courts of appeals as to precisely what the scope of that constitutional authority is (a question that depends largely on the Fourth Amendment rather than on Article II); but there is no serious question that, putting aside some unresolved Fourth Amendment questions, the NSA program would have been within the President's authority, and would therefore have been legal, if FISA had not been enacted.

But FISA was enacted, and the question at hand therefore is not whether the President has any constitutional surveillance authority vel non, but instead whether he has the constitutional authority to act in derogation of FISA. The first paragraph of the newest Bounds e-mail suggests the answer is "no." But, not surprisingly, the second paragraph takes back what the first appeared to concede -- particularly in its citation to In re Sealed Case, in which Judge Silberman, for the FISA appeals court, gratuitously opined in dicta that if the President has the constitutional power to engage in the surveillance in the first place, there's nothing Congress can do to restrict that power. (Silberman had been a lonely voice in the mid-1970's arguing that FISA was unconstitutional. His dictum in the recent In re Sealed Case is his attempt to re-fight a battle he lost thirty years before.)

So confusing! So internally inconsistent! How are we to understand Senator McCain's actual views?

You're kidding yourself if you think that anyone -- even Charlie Savage -- will get to the bottom of this. Because it's a bottomless pit.

Full post as published by Balkinization on June 06, 2008 (boomark / email).