Whitehouse blames the White House, but he should blame Congress

JB

This speech by Senator Sheldon Whitehouse accuses the Bush Administration of dictatorial powers. The Senator read classified OLC opinions that stated that the President is not bound by previous executive orders, that the President can determine for himself how they apply and whether to revoke them, that the President can waive orders by merely disregarding them in practice, and that the Justice Department must obey the President's determinations with respect to the operations of Executive Orders.

Whitehouse is angry at these opinions largely because he believes they permit the President to change a previous executive order that limits surveillance of Americans abroad to those the Attorney General believes to be agents of a foreign power. Absent this executive order, the President can spy on Americans abroad for reasons having nothing to do with their relationships to foreign powers because of the PROTECT America Act passed last August.

It's important to separate out these two issues: whether the President can change Executive Orders unilaterally and whether the PROTECT America Act's elimination of civil liberties protections for Americans was a good idea.

There are good policy and rule of law reasons for designing the Executive Branch so that the President cannot easily cast aside decisions concerning surveillance practices made in previous Executive orders. But that is not how Congress has organized the Executive Branch under its horizontal powers under the Necessary and Proper clause. (I put aside the interesting question of the possible limits of Congress's powers in this respect). Executive orders of the kind at issue in this controversy are not treated the same as rulemaking decisions by administrative agencies, which cannot be easily or arbitrarily abandoned.

The OLC opinions that Whitehouse saw (at least judging from his report of them) do not make the far more troubling claim that the President could disobey FISA under his Article II powers. That claim, which has been offered by various supporters of the Administration in the past, would truly make the President more like a King.

The real problem, as Whitehouse well knows, is not the President's decision to change executive orders to expand what he may do under the auspices of the Protect America Act. The problem is the Protect America Act, which shredded civil liberties protections by redefining a wide swath of electronic surveillance as not "electronic surveillance" under the meaning of FISA.

Whitehouse doesn't like the Protect America Act any more than I do. But he should direct his fire at the Congress that produced it last summer in a shameless display of capitulation to demagoguery and fear mongering. The Protect America Act was completely unnecessary to ensure that the President had the ability to engage in surveillance on foreign terrorists abroad, even if their communications ran through the United States. If Congress regulated the President's surveillance practices as it should, the President would be required to obey those laws; he would be required to take care that the laws be faithfully executed. If the President then refused to obey an amended FISA, Whitehouse's complaints about the White House would be fully justified.

Indeed, the White House has illegally refused to obey FISA from at least 2001 until the passage of the Protect America Act, and Whitehouse should be blaming the White House for that.
Posted 10:43 AM by JB [link]