The MSM paints the Bush-GOP NSA deal of new legislation as simply a political agreement to “fix” FISA. Some have provided assurances that there is nothing in the proposed legislation that would provide Bush immunity or bar impeachment. However, these assurances are based on elevating form over substance. The import of the legislation is Congressional approval of each of the components of Bush’s illegal NSA spying program. That is, Congress is saying that each of these actions performed or authorized by Bush over the past few years are legal. In legal jargon, a confirmation or adoption of the act of another even though it was not approved or legally authorized at the time the act was conducted is a ratification. As discussed below, there are at least two cases where Congress has ratified presidential actions in facts similar to Bush’s NSA program. These retroactive ratifications can essentially change the legal character of actions taken in the past and make them legal. If this legislation retroactively ratifies Bush’s illegal NSA program, then Bush’s actions are deemed legal in the eyes of the law at the time he committed those actions. Then, the question is, how can Congress — legally or politically — impeach Bush for actions which Congress has now sanctioned as legal?
The terms of the proposed legislation agreed to by the White House and GOP are as follows: Bush is required to report all warrantless eavesdropping to a “terrorist surveillance committee” of 7 lawmakers. This deal graciously supports the continued existence of FISA but permits Bush to continue to not obtain a warrant from the FISA court except when Bush feels like obtaining a warrant, or according to media reports, Bush must seek a warrant from the FISA court “whenever possible.” If Bush does not obtain a warrant, then in 45 days the Attorney General must certify that the surveillance is necessary to protect the country and explain to the lawmakers’ committee why a warrant has not been obtained.
If this proposed legislation sounds familiar, it is because it is the Bush NSA spy plan with a few modifications in name only:
–Under the Bush NSA plan, the White House briefed 8 lawmakers; under the proposed legislation, Bush will brief 7 lawmakers.
–Under both the Bush NSA plan and the proposed legislation, Bush does not need to obtain a warrant unless he feels like it.
–Under both the Bush NSA plan and the proposed legislation, the Attorney General is required to certify the surveillance in 45 days.
–Under the Bush NSA plan, warrant requirements are supervised by NSA agents and shift supervisors and the proposed legislation provides that oversight to lawmakers, or at least to 4 GOP Senators who conclude continued surveillance is warranted.
Given that we have a law regulating eavesdropping surveillance called FISA and we have a law that requires Bush to brief Congress (National Security Act of 1947), why another law to require the same? Duplication of laws is something Congress seeks to avoid to prevent the need for courts to determine which law should govern when there is a conflict. And, why are each of the primary elements of Bush’s illegal NSA spy plan that have been publicly disclosed the only elements of this new legislation?
The answer may be that Congressional ratification has been used to transform an illegal act directed by a Presidential Executive Order, such as the NSA spy program, into a legal act and has also been used during times of war.
“It is well settled that Congress may, by enactment not otherwise inappropriate, ‘ratify * * * acts which it might have authorized,’… and give the force of law to official action unauthorized when taken. And we think that Congress, irrespective of any doctrine of ratification, has, by the enactment of the statutes mentioned, in effect confirmed and approved the exercise by the Secretary of powers originally conferred on the Shipping Board.”
Similar to the NSA program, this case involved an Executive Order which authorized an executive branch agency to conduct action that was contrary to laws enacted by Congress. In this particular case, Swayne & Hoyt v. US (1937), a presidential Executive Order abolished a US Shipping Board and transferred its functions to the Department of Commerce in violation of a law enacted by Congress a year before. The Secretary of Commerce then took actions which were challenged on the grounds that the Executive Order did not have constitutional and legislative authority.
“The mere fact that the validation is retroactive in its operation is not enough, in the circumstances of this case, to render it ineffective. … This Court recognized that a distinction must be taken ‘between a bare attempt of the Legislature retroactively to create liabilities for transactions * * * fully consummated in the past * * * and the case of a curative statute aptly designed to remedy mistakes and defects in the administration of government where the remedy can be applied without injustice.’ Here the retroactive application of the curative act impairs no substantial right or equity of appellants; their rights to an administrative hearing and determination, and to a judicial review, have been as fully preserved as if the act had been adopted at the date of the Executive Order. The proceedings were conducted by the Secretary in the name of the United States, … by virtue of the 1932 Act and the Executive Order. The consequences of the validating statute are free of the elements of novelty and surprise which have led to condemnation, as unreasonable and arbitrary, of other retroactive legislation. …We conclude that the Secretary’s exercise of the powers conferred on the Shipping Board has been sanctioned by Congress.”
Congressional ratifications have also been used when a President usurped Congressional constitutional duties during a time of war. During the Civil War, President Lincoln usurped Congressional functions, just as Bush usurped both Congressional and judicial functions with the NSA spying. The corrective measure was President Lincoln asking Congress to ratify and confirm his acts, which Congress promptly did. This is the ratification that the White House now seeks from Congress in the NSA deal.
During the beginning of the Civil War, President Lincoln took actions while Congress was not in session and he faced an emergency crisis, not a 9/11 attack that occurred more than 4 years ago. However, unlike Bush`s claim to authority under an undefined unitary executive theory, Lincoln took actions that were supported by the Constitution, but were congressional powers rather than executive powers. Here are some examples:
“When Southern states seized Union forts and property, Congress was out of session. Lincoln called up 75,000 militia, established a blockade on Southern ports and called for large additions to the U.S. Army and Navy. In a special session of Congress on the significant date of July 4, 1861, Lincoln acknowledged that expanding the Army and Navy, a congressional power, may not be “strictly legal” for the president, but under the circumstances he acted “trusting then as now, that Congress would readily ratify” his actions and that “nothing has been done beyond the constitutional competency of Congress.”
Many protested Lincoln’s suspension of habeas corpus – allowing detention without resort to the usual processes of law. He responded that the Constitution says habeas corpus “shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it.” Certainly, this was a time of rebellion and he argued that public safety did require sparing use of “qualified suspension.” So he acted.
He argued that in time of “dangerous emergency” when Congress was not in session, the framers could not have intended for the government to do nothing until Congress could be assembled. In the silence of the Constitution on who should exercise the power, he said he would leave it up to the “better judgment of Congress” whether to pass legislation. Congress did.
Lincoln was criticized for going beyond his powers in issuing the Emancipation Proclamation (Jan. 1, 1863), freeing slaves in the portions of the South still under Confederate control. But there, too, while he defended this as a “fit and necessary war measure” for suppressing rebellion in the war zone, he understood that it would have no constitutional validity after the war. He had urged Congress, the month before, to launch the constitutional amendment process to abolish slavery nationwide. The 13th Amendment became part of our Constitution in 1865.”
It can be argued that Congressional ratification for Bush is inappropriate under the Lincoln Ratification model because key elements of Lincoln’s ratification were that Lincoln took emergency actions when Congress was not in session and these actions were consistent with congressional powers in the Constitution.
Finally, there is no reason to believe that the legislation proposed at this time would clearly state whether it is a ratification. First, the legislation is being drafted by GOP lawmakers who have puppet strings attached to the White House. And, Bush does not have a history of stating his real intentions to the public, preferring instead his own version of Orwellian doublespeak. Thus, Bush supports our troops by sending them into an unnecessary war, without the right equipment to provide safety, without sufficient number of troops, and no preparation for events clearly predicted. Bush’s practice is to drop code words or hints about a particular issue, but if the public really wants to understand what he is saying, we have to review the hints and see if they comprise the elements of some theory or legal doctrine in order to determine what he is really saying.
Second, ratification can be express or implied. So, neither Bush nor this legislation have to state that it does not give Bush immunity from impeachment if the legal effect of the legislation is to render Bush`s actions legal at the time he executed his NSA Executive Order and conducted the program over the past few years. There are also indicators that this legislation will provide retroactive ratification: The White House views this legislation as a means “to further codify the president’s authority”; a perfect storm for impeachment has been brewing with both governments and the public supporting impeachment if Bush’s NSA actions violated the law; the purpose of the legislation is to avoid Congressional probes that may result in findings that Bush’s NSA program was illegal, and thus potential impeachment hearings; and GOP Senators have been issuing statements that it is time to move forward and “fight the enemy,” not ourselves.
In conclusion, it seems that the only way to answer the questions raised here is to have a public debate on the issue of the legal implications and consequences of the White House deal with the GOP before this proposed legislation is enacted by Congress. As noted in the Swayne case, the US Supreme Court stated that even without the ratification doctrine, the Congressional enactment of statutes effectively confirmed and approved the prior unauthorized actions of the Executive Branch. And, if Bush is not planning to use this legislation as a chickhawk maneuver to save him from impeachment, if he simply wants to improve the program to make Americans safer, then he should not object if we ask Congress to include a provision in this legislation that it shall not provide any immunity or defense to Bush should the American people wish to impeach him based on Bush’s illegal NSA program prior to this legislation.
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