Cheney defended the recently revealed SWIFT terrorist finance tracking project, throwing it into the murky pond of all terrorist surveillance undertaken with what Cheney has argued is the President’s inherent constitutional authority as Commander in Chief. He insisted:
…. these are good, solid sound programs. They are conducted in accordance with the laws of the land. They are — they’re carried in a manner that is fully consistent with the constitutional authority of the President of the United States.
Why is the Vice President so confident the surveillance programs are legal? Maybe it’s because so many laws have exceptions for the President. These were added by President Bush to modify the bills sent to the White House. President Bush doesn’t veto a bill when he can resort to shielding the President from the bill’s requirements via exception statements.
In Cheney’s campaign to expand presidential powers, his aide, David Addington, screens all legislation. Statements are then drafted to carve out exceptions.
Bush has used the signing statements to waive [sic] his obligation to follow the new laws. In addition to the torture ban and oversight provisions of the Patriot Act, the laws Bush has claimed the authority to disobey include restrictions against US troops engaging in combat in Colombia, whistle-blower protections for government employees, and safeguards against political interference in taxpayer-funded research.
Under Cheney’s expansionist theory, Congress cannot dictate how the President runs the military and spy agencies.
Despite legal scholars’ skepticism about the expansive theory of presidential power Cheney has long promoted, Bush’s legal team has used the theory to target every law that regulates the military or the executive branch.
Added to the expansionist theory is a generous interpretation of the AUMF (Authorization to Use Military Force) Pub. L. No. 107-40, 115 Stat. 224 Sec. 2(a)(2001). This is the congressional resolution authorizing the President to employ all necessary and appropriate force to prevent a recurrence of the September 11, 2001, terrorist attacks.
We may lack a court’s decision on the wiretapping program, but we do have the January 2006 opinion solicited by Rep. John Conyers from constitutional scholar Laurence Tribe at Harvard. For Professor Tribe the question wasn’t even close. He examined the legal arguments in detail — in particular, the President’s reliance on AUMF.
On the government’s proposed reading of the AUMF, in other words, the PATRIOT Act, insofar as it confers the powers of investigation and prevention most fiercely sought by the President, becomes a needless and mostly redundant bauble. A statutory construction with such bizarre and altogether unanticipated consequences — and one that rests on so shaky a foundation — would be inadmissible even if accepting it would not leave us with serious questions under the Fourth Amendment [ban on unreasonable search and seizure], which it of course would.
… the presidential program of surveillance at issue here is a violation of the separation of powers — as grave an abuse of executive authority as I can recall ever having studied.
In January 2006, the ACLU commenced suit against the National Security Agency on behalf of a group of journalists, scholars, attorneys, and national nonprofit organizations (including the ACLU) who frequently communicate by phone and e-mail with people in the Middle East. Suit was filed in Detroit (E.D. Mich.), charging violations of First and Fourth Amendments and seeking to halt the electronic surveillance program. The government relies on the state secrets privilege, essentially claiming the NSA program is outside judicial review.
The Bush administration has acknowledged that it has not complied with the law but has said that a Congressional authorization in 2001 to use military force against Al Qaeda [AUMF] and the president’s inherent constitutional powers allowed him to violate it.
The government argued that more facts are required in the case but that they cannot be disclosed. It invoked the state secrets privilege even as to facts needed to adjudicate whether the plaintiffs had standing.
It looks to me as if the Cheney/dittoBush pretense of horror at the public revelation of the SWIFT program is rooted in the lawsuit defense, particularly the invocation of state secrets privilege. This would explain why Cheney lumped the SWIFT program in with the warrantless eavesdropping program and proclaimed them constitutional.
Where will the data-mining end? Maybe constitutional scholars will evaluate the SWIFT program the same way — “as grave an abuse of executive authority as I can recall ever having studied.”
