Obama: We Don’t Need No Stinkin’ Warrants

The Obama Justice Department says it can look at phone records without warrants or judicial oversight.

Mistermix links sadly to McClatchy‘s report “Obama assertion: FBI can get phone records without oversight.”

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

That assertion was revealed — perhaps inadvertently — by the department in its response to a McClatchy request for a copy of a secret Justice Department memo.

Critics say the legal position is flawed and creates a potential loophole that could lead to a repeat of FBI abuses that were supposed to have been stopped in 2006.

The controversy over the telephone records is a legacy of the Bush administration’s war on terror. Critics say the Obama administration appears to be continuing many of the most controversial tactics of that strategy, including the assertion of sweeping executive powers.

Much more at the link but you get the idea.

Mixie’s analysis of this is exactly the same as mine: “The unitary executive never gives up any power.”

But my reaction to this is chagrin rather than anger. This is of a piece with yesterday’s post in which I assert that I like and respect Dick Cheney and Don Rumsfeld, even though I think they ordered or fostered some policies which were probably illegal, possibly immoral, and almost certainly harmful to the national security interests they were striving to protect. While this contradiction infuriated some readers, the bottom line is that I don’t think the Obama administration’s intent here, any more than that of their predecessors, is evil or even cynical. It is, arguably, hypocritical in that Obama campaigned against the very policies he’s continuing. But I actually tend to forgive people for changing their perspective once they’re sitting in the big chair and suddenly have the weight of the world on their shoulders.

Americans hold their president — not Congress, not the Courts, not their state and local leaders — responsible for national security. And presidents have, since the Washington Administration, bent and broken the law in order to do what they deem best in that arena. After all, they reason, they’re not only where the buck stops but they have the best information. And, naturally, they’re virtuous and intelligent.

I wrote a piece more than five years ago for TCS Daily called, “Real Power is Something You Take.”

Nearly half a century ago, legal scholar Edward S. Corwin wrote that, “The Constitution is an invitation to struggle for the privilege of directing American foreign policy.” His argument was that, while the Framers clearly intended for the legislature to be the predominant branch in domestic policy, both branches had substantial power in the realm of international affairs without bright lines to delineate them. Most notably, the Congress had the power to declare war but the president, as Commander-in-Chief, had the power to send troops into harm’s way.

Fictional “Dallas” patriarch Jock Ewing once told his equally fictional son, Bobby, that “Nobody gives you power. Real power is something you take.” All of our great presidents — and some of the less-than-great ones — took great liberty with the Constitution. The have seized the initiative and forced Congress to react.

[…]

If the Constitution is “an invitation to struggle,” it is one that presidents have been winning since the 1940s. The modern president has reversed the Constitutional presumption that Congress is the preeminent branch and the president secondary. Since Roosevelt, it has been axiomatic that “the president proposes, Congress disposes.” That is especially true in foreign policy and even more so in national security matters.

It’s true that Bush doesn’t have the degree of autonomy in this war as FDR and Lincoln did in theirs. But that’s mostly a function of public perception of the nature of a war–what he can get away with, to put it more crassly–than any limitation of constitutional power. Much of what FDR and others have done is extraconstitutional. But bold wartime leaders have been flouting the Constitution since at least Lincoln, with the full support of the public.

I don’t like any of this. I condemn it when done by my own party or the opposition. But I understand it.  And I expect the Congress and the Courts to rein in this impulse as much as possible.

FILED UNDER: *FEATURED, Politics 101, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. michael reynolds says:

    If the law is getting in the way of national security, here’s what you do: you draft a new law, you take it to Congress, and they then decide what the law is. The Supremes later may get the chance to test whether the new law is constitutional. If it’s not, then it’s not law.

    It’s not complicated. Law or Not Law. If it’s not law, then you don’t get to do it.

  2. Tlaloc says:

    “Obama assertion: FBI can get phone records without oversight.”

    He wouldn’t want to ruin his perfect failing record. What a douchebag.

  3. matt says:

    ah Bush Lite strikes again…

  4. James Joyner says:

    Michael: I fully agree that that’s how it’s supposed to work. Regardless of which party holds the White House, the tendency going back to at least FDR is for the president to take too much power and Congress to be far too weak in its oversight responsibilities.

    All I’m saying is that 1) I understand why a non-corrupt president would push the envelope in certain arenas and 2) there are institutional and political reasons why they tend to get away with it more often than not.

  5. superdestroyer says:

    The problem is that the courts keep the regulation of searches to itself. Basically all the courts can do is prevent the use of the information in criminal proceedings. Intelligence agencies and organizations such as the FBI terrorism can so whatever thy want with the information.

    Do the courts really want to insert themselves into the intelligence gathering business? Do people really believe they have an expectation of privacy when they cross an international border?

  6. ponce says:

    “I don’t condone wife-beating, but I understand it.”
    – Sam Kinison

  7. george says:

    > ah Bush Lite strikes again…

    You sure about that ‘Lite’?

    I agree with Reynold’s above; if you feel you have to change the law, take it to congress and see if they agree. Governing without law is a quick road to disaster.

  8. Pete says:

    Michael, I tend to agree with you, but isn’t your idea a little too simplistic for today’s complex geo-political world? Congress has devolved into a body of partisan hacks who seem ready to risk national security for partisan reasons. Perhaps if more of them acted more as Americans rather than republicans or democrats, then the executive branch might be willing to trust them more with serious security matters. I realize my comments tend to sound simplistic too, but I think the executive needs to act often to avoid the gridlock expected in a partisan congress.

  9. MarkedMan says:

    I fear the pendulum won’t spring back until we find out that one of these assumed powers has been used for political or financial shenanigans.

  10. tom p says:

    James: Once again I bow down to your prescience…

  11. tom p says:

    ps: The picture says it all…

  12. john personna says:

    We tend to abandon our civil liberties in time of war. That’s sad, but it’s an ancient precedent. The only hope I have is that the pendulum will swing back (probably not until wars end), and then we’ll pretend “never again” for a while, again.

    Obama is probably tailing off the absurdities of Cheney et al (if there was anything to respect there it was before he went old and mad), and that’s probably all we should expect.

  13. michael reynolds says:

    @James; as to motive i agree, and did when it was Bush. (Mostly.)

    @Pete: Yes, both houses of Congress are populated to a surprising degree by howler monkeys, but that’s true in part because voters have begun to conclude that the Congress doesn’t really do anything important so what the hell, let’s send Zippy the Pinhead because he’ll be good for laughs.

    I’m not a big one for slippery slopes but if we’re keeping the whole democracy thing we have to at least pretend as if Congress is important and send fewer Peter Kings and more Lee Hamiltons.

  14. anjin-san says:

    Democrats need to turn up the heat on Obama regarding this issue. If the law needs to change, lets change it. In the meantime, follow the law or risk kissing my support goodbye.

  15. TG Chicago says:

    “This is of a piece with yesterday’s post in which I assert that I like and respect Dick Cheney and Don Rumsfeld, even though I think they ordered or fostered some policies which were probably illegal, possibly immoral, and almost certainly harmful to the national security interests they were striving to protect. While this contradiction infuriated some readers, the bottom line is that I don’t think the Obama administration’s intent here, any more than that of their predecessors, is evil or even cynical.”

    Mr. Joyner, are you making a substantive distinction between “immoral” and “evil” here? If so, can you explain that distinction? If not, can you explain why I’m wrong for thinking that you are equating them?

    Also, somewhat related: if there had been a 9/11-level attack on the US in the 2-3 years post-9/11, would that have helped or hurt GWB’s re-election prospects? (obviously his approval ratings skyrocketed after the original 9/11 attacks, so I’m asking what you believe the effect would have been of a second attack)

  16. James Joyner says:

    @TG:

    I think blowing up a village in Afghanistan to get one bad guy is immoral and possibly illegal. But I understand why someone would order it done. Evil is blowing up the village because you hate Muslims. Or because it might help you get re-elected. Or because it’s fun!

    A second 9/11 could have gone either way, politically, depending on how it was handled. A lack of attacks meant they could say, “See, it’s working.” Another attack would have bolstered the case for, “See, it’s necessary.” So, I don’t know.

  17. anjin-san says:

    > I think blowing up a village in Afghanistan to get one bad guy is immoral and possibly illegal.

    How about blowing up a country because of phantom WMDs? And just possibly because it sits on top of an ocean of oil…

  18. Ben Wolf says:

    “The only hope I have is that the pendulum will swing back (probably not until wars end), and then we’ll pretend “never again” for a while, again.”

    That’s the rub, isn’t it? Our leaders and our generals tell us this war will take generations, so exactly how do you plan on getting those liberties back?

  19. anjin-san says:

    The (very long) cold war ended, now we have the endless “war on terror”. Nature abhors a vacuum. So do defense contractors.

  20. ponce says:

    “Nature abhors a vacuum. So do defense contractors.”

    That’s like blaming needle manufacturers for heroin addiction.

    A lot of Americans (maybe a majority) crave war.

    Doesn’t really matter to them who we’re blowing up or why.

  21. jwest says:

    Liberals can argue both ways about wire tapping depending on where they sit in regard to the freedom versus security debate.

    What cannot be argued about is the total disregard liberals have for the education and welfare of inner-city children. Where is the outrage to this news item?

    http://www.myfoxdc.com/dpp/news/dc/arbitrator-rules-dc-public-schools-must-rehire-75-teachers-fired-020811#

  22. Mr. Prosser says:

    @marked man: I believe you are correct, nothing extra-constitutional gets attention until some venal administration (Nixon?) abuses it.
    @anjin-san: True, the war on terror is following the same route as the war on drugs. When an abuse affects the upper middle class, like a SWAT team invading a rich suburban home and killing the family poodle, then some attention will be paid.

  23. Brummagem Joe says:

    As you say no executive surrenders power once they have it but that hardly absolves those that originally took it or the tame legislature that handed it over on largely specious grounds.

  24. wr says:

    jwest — The arbitrator said these 75 teachers were fired illegally and for no reason. You have decided that they are incompetent and liberal. Even the Fox news story doesn’t begin to suggest either of those suppositions. So while it’s no surprise to see that you hate teachers — I’m sure that’s why you left school after the second grade — this story is a non-starter.

  25. matt says:

    “You sure about that ‘Lite’?”

    Only when compared in whole..

    “We tend to abandon our civil liberties in time of war.”

    Too bad a war on a tactic has no end. or maybe that’s the main feature..

    “When an abuse affects the upper middle class, like a SWAT team invading a rich suburban home and killing the family poodle, then some attention will be paid.”

    That’s already happening. Hell a few mayors and politicians have had it happen to them. Then in the comments section of the news story you’ll see endless posts from people praising law enforcement while attacking those who question the raid as being anti-law/police…

  26. tom p says:

    “A second 9/11 could have gone either way, politically, depending on how it was handled. A lack of attacks meant they could say, “See, it’s working.” Another attack would have bolstered the case for, “See, it’s necessary.” So, I don’t know.”

    Heads I win, tails you lose.

    James, if you don’t know it is only because you don’t want to know(or because you are f’d no matter what you say)

    See how easy it is?.