How does Bush escape liability when experts agree that his NSA surveillance program violated FISA and criminal law? The answer lies in Congressional power to clean-up Bush’s little mess by approving his program as proposed in both the DeWine and Specter bills. This handy cleaner-upper is called ratification, which is simply confirmation or approval. The doctrine is a good match for Bush because it is based on false facts and unreality. The stealthy part is that Bush and Congress call the process negotiation, not ratification, which could trigger public debate on what the heck is ratification. And, the final legislation does not have to include magic words of retroactivity in order for the law to be retroactive. So, Bush can keep on smirking while he pulls the wool over the public’s eyes.
Since at least last February, it has been pretty clear that congressional ratification or reliance on the President Lincoln ratification precedent is the linchpin to Bush’s win-win, whether based upon the DeWine or the Specter proposal to retroactively approve Bush’s illegal NSA spying program. The New York Times also reported that Bush’s strategy is to stop lawmakers’ demands for investigations by promising negotiations and then using negotiations to obtain “legislation to approve the program retroactively, much as Congress eventually approved Abraham Lincoln’s suspension of habeas corpus during the Civil War.” Even Senators Hagel and Specter expressed concern that DeWine’s proposal would “retroactively legitimize the program before Congress learned it’s scope.” Was their concern retroactive legalization or just the timing?
(1) Congressional ratification of Bush’s warrantless spying is a “legal fiction” which assumes that a false fact is true to protect Bush and the NSA program from legal liability or challenge.
The congressional ratification doctrine sounds crazy when not evaluated as a legal fiction. A “legal fiction” is a tool used by the legal system to promote accepted policies by assuming that a fact which is false or nonexistent is actually true or real. For example, a common law rule held that a husband and wife could not testify against each other. This legal fiction was based upon the nonexistent fact that husband and wife were actually one person in order to promote the social policy of peace in the family.
Congressional ratification of Bush’s NSA spying is also a legal fiction which assumes a false or nonexistent fact (Bush’s legal “authority” in 2001 to establish warrantless surveillance) is actually true or real by backdating or relating back legal authority of the 2006 FISA “reform” law to 2001 when Bush acted in order to transform by operation of law Bush’s prior illegal act into a legal act. The reality is that the world knows that Bush did not have legal authority when he signed Executive Order(s) in 2001 to “authorize” warrantless surveillance of Americans. Congressional ratification in 2006 would correct that little error by a legal “time machine” that would now say, ah, yes, Bush did have legal authority a few years back to issue that order, and so, at the time Bush committed these acts, they are now no longer illegal. Seems quite appropriate that Bush would rely upon a legal fiction based upon falsehoods and lack of reality to save himself and his spying program.
(2) Congressional ratification is one of the legal doctrines considered by the US Supreme Court when a president’s actions are challenged as illegal.
When a President’s action is challenged as illegal, the 1st question addressed by the court is whether the “action of the Executive was authorized” at the time the President acted? The answer is that the Bush team has never been able to cite one statutory or constitutional provision which expressly authorized Bush to order warrantless spying of Americans. If the “action of the Executive” was “not originally authorized,” as here, then the 2nd question addressed by the court is was the president’s action subsequently confirmed or ratified by Congress?
(3) Congressional ratification is simply Congress enacting a law that approves, confirms or recognizes — either expressly or by implication — Bush’s NSA spying program.
Congress may ratify by enacting a subsequent law that approves, confirms or recognizes Bush’s earlier actions when he established the NSA spying program in 2001. It is a curative device to fix the “irregularity, defect, or want of original authority” for Bush’s warrantless spying that would be illegal absent ratification. As a curative device, the ratification doctrine is based upon the assumption (discussed in part III of this series) that if Congress had the constitutional power to pass a law in 2001 that would have authorized the actions taken by Bush, then Congress may pass a law in 2006 to remedy the fact that Bush did not have “original authority” in 2001. The theory is that in 2001, some branch, agency or official of the US government had original authority for the actions committed by Bush. That is, the legal authority was floating around somewhere in the federal government in 2001, but simply was not executed by the correct person or entity and so now it is reasonable to just fix that little technicality.
However, Congressional ratification has not been limited to just tidying up little oversights. It has been used when an executive order authorized an executive branch agency to conduct action that was contrary to laws enacted by Congress. And, it has been used to legalize President Lincoln’s usurpation of congressional constitutional duties during a time of war.
Moreover, if the final law is a ratification, then Congress would be silently admitting that Bush’s executive order and/or the NSA spying program was illegal because if Bush did have legal authority, as he claims, there would be no need for Congressional ratification.
(4) Congressional ratification of presidential acts may occur by a very aboveboard and public express approval.
Congress may expressly ratify past presidential actions that were not authorized by law by expressly stating that the new law is a ratification of the president’s past actions or by including a clause in the new law which expressly references Bush’s Executive Order which established his illegal NSA surveillance program.
Given that ratification may be accomplished by implication, there is no need for Congress or the White House to enact a new FISA law that alerts the public with a red flag, such as Specter’s May proposal which expressly made the new law retroactive to 1978. Specter may have included the retroactivity clause as a face-saving measure for the Democrats, who can boast that they succeeded in forcing the removal of the retroactivity clause from the final legislation. However, it would be a sham victory because even an implied ratification may accomplish the same backdating as a retroactivity clause.
(5) Implied ratification is a more stealthy operation: Congress may approve Bush’s prior illegal acts without the public even realizing that Congress has approved the acts or the silent retroactive legal consequences of that approval.
In implied ratification, Congress enacts legislation that “at least exhibits an acquiescence” and approval of Bush’s NSA surveillance program. Notice that the Supreme Court described implied Congressional ratification as “acquiescence” or the “passive assent or agreement without protest” which seems a particularly apt description of this wimpy Congress.
Implied Congressional ratification is the silent cleaner-upper. Congress simply drafts a law which expressly approves some feature related to Bush’s spying program, and, by doing so, approval of the program itself is implied or inferred. For example, Congress may ratify by approving appropriations for the salaries and expenses necessary to carry out the NSA surveillance programs. The theory is that Congress would not have approved funds for the program if the program itself was illegal, and therefore, an approval of funds is an implied approval of the program itself.
Implied ratification also occurs when a government agency or official did not have legal authority at the time that it ordered the creation and execution of project X and then subsequently Congress passes a law that approves of a major component of project X or the actions taken by the government related to project X, as discussed in the Supreme Court decision of Mattingly (1878). In Mattingly, the corporation of Washington commenced a street improvement project. The project had not been completed when Congress enacted the law to incorporate the District and provide for the creation of a board of public works. When the city board was created, it took charge of the project initiated by the corporation. After the improvements were completed, the board charged assessments to property owners whose adjoining property was benefited by the improvements. Property owners filed suit to declare the assessments illegal and void because the board did not have legal authority to authorize the improvement project at the time the project was initiated by its predecessor (the corporation) and therefore it did not have authority for assessments.
Several years after the fact, Congress enacted another law that directed the District to enforce the collection of assessments for special improvements on the property benefited by the project. There were no magic words of ratification in this law, but the Court concluded that Congress had ratified the assessment component of the project and therefore also the street improvement project by enacting this law:
“The meaning of this act is not to be mistaken. It was practically a confirmation of what the board of public works had done. … It is not denied that the act had in view these assessments now assailed by the complainants, and no such denial could honestly be made. We are of opinion, therefore, that the assessments have been ratified by Congress.”
Both GOP proposals go beyond just being “practically a confirmation” of Bush’s program by actually adopting exact components of the program which have been publicly disclosed. Thus, Bush has a stronger case of implied ratification than the decisions cited here. Specter’s May FISA proposal takes major components of Bush’s illegal spying program (warrantless surveillance, inherent constitutional powers) and now states approval of Bush’s method of operation by adopting that same method of operation. Similarly, DeWine’s proposal adopts various components (lawmaker briefings, permissible warrantless surveillance, Attorney General certification, and administrative warrant oversight) of Bush’s NSA spy plan with a few modifications in name only.
(6) The legal effect of Congressional ratification is that the new FISA law is retroactively applied even if the law does not expressly state that the provisions are retroactive.
Would Congressional ratification have retroactive (legalize prior illegal acts) or prospective (keep prior acts illegal, but change the law in the future) effect? Just as ice cream is a key ingredient of a hot fudge sundae, retroactively is a primary component of ratification, and does not need to be specified any more than you would have to tell the waiter that you want ice cream in your sundae. It just wouldn’t be a hot fudge sundae without the ice cream.
An inherent component of Congressional ratification is that the new FISA law is deemed retroactive because it is designed to cure a prior “defect” by providing Bush with the “original authority” that he did not have when he acted in 2001. If ratification was not retroactive, then Congress would not be providing the “original authority” to the president to cure the “defect” that is the purpose of the doctrine.
Therefore, it would actually be redundant for Congress to state that the new law is retroactive because it would defeat the purpose of ratification to accord only prospective application, as explained in Heinszen. In Heinszen (1907), the US Supreme Court accepted that a presidential order establishing tariff duties was executed without legal authority. The opponents to the tariff duties argued that no right to collect tariffs from them can exist until Congress ratifies the president’s order. The opponents further argued that Congress did not have the power to ratify the president’s order unless Congress also had the power to retroactively impose tariffs. In other words, the opponents were arguing that ratification would only have prospective effect if Congress did not have the power to impose retroactive tariffs. The court noted that the opponents did not understand that ratification itself accords the law retroactive or retrospective effect:
“[T]he unsoundness of the proposition relied upon is demonstrated by the application of the elementary principle of ratification to which we have previously referred. Moreover, the fallacy which the proposition involves becomes yet more obvious when it is observed that the contention cannot even be formulated without misstating the nature of the act of Congress; in other words, without treating that act as retrospective legislation.”
This is why Bush has been so cocky with the fact that he clearly violated both FISA and criminal law. Congress has already silently agreed that Bush’s existing program should continue, as Bush noted smirking one day, that most lawmakers are not asking that his program be stopped or even forcing full disclosure of Bush’s program before changing the law. The only question is how to tidy up Bush’s little technicality of violating the law while saving political face for the midterms and keeping the public in the dark of the consequences flowing from the GOP proposals.
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