Why Dawn Johnsen should not be confirmed — surveillance of terrorists

In my original post arguing against the confirmation of Dawn Johnsen, I noted that Johnsen has objected to the warrantless surveillance of suspected al-Qaeda communications into and out of the United States. In his critique of my post, Professor Neil Kinkopf does not dispute my statement of Johnsen’s position. However, he argues that “the Bush Administration’s surveillance program at issue was roundly criticized, by Democrats and Republicans alike, as violating the Foreign Intelligence Surveillance Act and Johnsen’s views on the program are solidly within this bi-partisan mainstream.” He adds that “the Bush Department of Justice itself concluded that at least one version of the program was illegal.”

Let’s take Professor Kinkopf’s second point first. Kinkopf does not identify the program Justice Department found illegal. He may be referring to the one to which Jack Goldsmith and James Comey objected, leading to the famous “confrontation” between Alberto Gonzales and Attorney General Ashcroft in the hospital. As I understand it, this program was nixed as a result of the objections of Goldsmith and Comey (backed by Ashcroft) in or around March 2004 when it was still secret. The revised program was revealed to the public in late 2005. Johnsen objected to the revised surveillance program, not the discarded one, the details of which remained unknown. The fact that the Justice Department rejected the original secret program in way no supports Johnsen’s position on the publicized program the Justice Department approved.

But what of Kinkopf’s assertion that Johnsen’s views on the surveillance program revealed in late 2005 were “solidly within [the] bi-partisan mainstream”? Kinkopf presents no evidence to support this claim. If I recall correctly, to the extent there was substantial Republican criticism, it focused on the fact that Congress supposedly had not been consulted, rather than on any claim that the program per se was illegal. [Note: more than a few Republicans thought the president should get explicit legislative authority for the surveillance program for prudential reasons, but that’s different from the position that the president cannot lawfully conduct the surveillance without such legislation]

Actually, the Bush administration had disclosed the program, as well as its more controversial predecessor I believe, to a bi-partisan group of members of Congress including the Democratic leaders of the House and Senate and the top Democrats on the House and Senate intelligence committees. Apparently, they had no objections. Thus, to the extent there was a bi-partisan consensus, it was contrary to Johnsen’s position, at least until we were more than four years past 9/11, at which time Democrats, under pressure from their left-wing base once the program was disclosed, balked. Johnsen, a blogging activist, is best viewed as at the vanguard of that left-wing base.

But what was the state of the law at that time? John Hinderaker, in a lengthy analysis, described it this way:

The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.

That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.

It’s worth noting that all of the cases cited above involved warrantless searches inside the United States. The NSA program, in contrast, involves international communications only, and the intercepts take place at least in part, and perhaps wholly, outside the United States. Thus, the NSA case is even clearer than the cases that have already upheld Presidential power.

I saw the situation as less clear-cut because I thought John’s view ultimately rested on one opinion by the FISA Review Court. However, the notion that Johnsen took some sort of bi-partisan, mainstream legal position is incorrect. Her approach is better characterized as resolving legal doubt in favor of limiting the executive’s power to protect the nation. Her pattern of doing just that is the primary reason why I believe the Senate should reject her nomination.


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