Next AG Eric Holder, Wiretaps, and FISA

Holder for Wiretaps. WSJ Editorial
The AG nominee bows on Presidential power
WSJ, Jan 20, 2009

First it was the special surveillance court that we learned last week has affirmed the President's constitutional power to undertake warrantless wiretaps. Now comes Attorney General nominee Eric Holder, who endorsed this executive authority during his confirmation hearing late last week.

During Thursday's Senate Judiciary Committee hearing, Utah's Orrin Hatch read Mr. Holder a passage from a speech the nominee gave to the American Constitution Society in June of last year. Mr. Holder had said, "I never thought I would see that a President would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens," referring to the National Security Agency program. "This disrespect for the law is not only wrong. It is destructive in our struggle against terrorism."

The Republican Senator was sniffing out Mr. Holder's views on executive power under the Constitution and whether Congress can pass laws, such as the 1978 Foreign Intelligence Surveillance Act, that limit it. "Do you believe," asked Mr. Hatch, "that the President has -- that whoever is President has -- inherent authority under Article II of the Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article II?"

Mr. Holder answered with some political tap dancing. "There's an exclusivity provision in the FISA act that essentially says, as Congress has expressed, this is the exclusive way in which that surveillance should occur," he said. "My speech was taking the Administration to task for not following the dictates of FISA. As I indicated -- I think in response to a previous question -- I think that had the Administration worked with Congress, as we are pledging to do, that tool, a very valuable tool, a very valuable tool, could have been in the arsenal of the Administration without any question about its legality."

Senator Hatch pressed him on this point, resulting in the following exchange:

Mr. Hatch: "Back to my prior point, the President's inherent authority under the Constitution. Can that be limited by a statute? You're relying on a statute as though that's binding on Article II of the Constitution."

Mr. Holder: "Well, the President obviously has powers under the Constitution that cannot be infringed by the legislative branch. That's what I was saying earlier. There are powers that the President has delegated to him -- that he has -- and Congress does not have the ability to say, with regard to those powers, you cannot exercise them. There's always a tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the President, the executive branch interacting with the legislative branch and coming up with solutions . . ."

Mr. Hatch: "That still doesn't negate the fact that the President may have inherent powers under Article II that even a statute cannot vary."

Mr. Holder: "Sure."

Mr. Hatch: "Do you agree with that statement?"

Holder: "Yeah. There are certain things that a President has the constitutional right, authority to do, that the legislative branch cannot impinge upon."

Hatch: "Okay."

[More faithfully reproduced questioning in Eric Posner's post at Volokh Conspiracy. See at the end]

So let's see. Mr. Holder now concedes that Presidents have inherent powers that even a statute can't abridge, notwithstanding his campaign speeches. That makes us feel better about a General Holder on national security. But his concession is further evidence that the liberal accusations about "breaking the law" and "illegal wiretaps" of the last several years were mostly about naked partisanship. Mr. Holder's objection turns out to be merely the tactical political one that the Bush Administration would have been better off negotiating with Congress for wiretap approval, not that it was breaking the law. Now he tells us.


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[Eric Posner's post at Volokh Conspiracy, picking from the NYT transcript]

LEAHY: Do you believe that the president of the United States has authority to exercise a commander-in-chief override and immunize acts of torture? I ask that because we did not get a satisfactory answer from Former Attorney General Gonzales on that.
HOLDER: Mr. Chairman, no one is above the law. The president has a constitutional obligation to faithfully execute the laws of the United States. There are obligations that we have as a result of treaties that we have signed — obligations, obviously, in the Constitution. Where Congress has passed a law, it is the obligation of the president, or the commander-in-chief, to follow those laws.
…
FEINGOLD: … First, what is your view of the president's constitutional authority to authorize violation of the criminal law, duly enact the statutes that may have been on the books for many years when acting as commander-in- chief?
HOLDER: The president, as I've said, is not above the law, has a constitutional obligation to follow the law and execute the laws that this Congress passes. If you look at the Steel Seizure concurrence of Justice Jackson that, I think, sets out in really wonderful form the power that the president has and where the president's power is strongest and where it is weakest.
It is weakest in Category 3 where Congress has indicated something contrary to what the president wants to do. That is where Justice Jackson says the president's power is at its lowest level. And I think — I'm not a constitutional scholar — but I think that there has never been a president who's been upheld when he's tried to act in Category 3. I think, but I'm not sure.
FEINGOLD: I believe that's right. And I want to follow that. Using the construct of Justice Jackson, more specifically, does the president, in your opinion, have the authority, acting as commander- in-chief, to authorize warrantless searches of Americans homes and wiretaps of their conversations in violation of the criminal and foreign intelligence statutes of this country?
HOLDER: I think you're then getting into Category 3 behavior by the president. Justice Jackson did not say that the president did not have any ability to act in Category 3. Although, as I said, I'm not sure there's ever been an instance where (inaudible) courts have said that the president did act appropriately in that category.
It seems to maybe it's difficult it imagine a set of circumstances given the hypothetical that you have used and given the statutes that you have referenced that the president would be acting in an appropriate way given the Jackson construct, when I think is a good one.
…
HATCH: … Now, do you believe that the president has — whoever is president of the United States — has inherent authority under Article 2 of the Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article 2?
HOLDER: Senator, no one is above the law. The president has the constitutional obligation to make sure that the laws are faithfully executed. In rare instances where Congress passes a law that is obviously unconstitutional — if, for instance, Congress were to pass a law that the secretary of defense should be the commander-in-chief, or that women would not have the right to vote — I think that the president in that instance would have the ability to act contrary to a congressional dictate.
…
OK. But back to our prior point, is the president's inherent authority under the Constitution — can that be limited by a statute?
HOLDER: The president's inherent authority. Well...
HATCH: Right.
HOLDER: ... it's...
HATCH: I mean, you're relying on the statute as though that's binding on Article 2 of the Constitution.
HOLDER: Well, the president obviously has powers under the Constitution that cannot be infringed by the legislative branch. That's what I was saying earlier.
There are powers that the president has, and that have been delegated to him that he has. And in the absence — Congress does not have the ability to say, with regard to those powers, you cannot exercise them. There's always the tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the president, the executive branch interacting with the legislative branch, and coming up with solutions...
HATCH: That still doesn't negate the fact that the president may have inherent powers under Article 2 that even a statute cannot vary.
HOLDER: Well, sure. The...
HATCH: Do you agree with that statement?
HOLDER: Yes, there are certain things that the president has the constitutional right, authority to do, that the legislative branch cannot impinge upon.