The law must be clear, and it must be clearly interpreted by the courts, establishing bright-line directives for all to follow. Otherwise, confusion will be beset by both legal and political mischief, of which there is too much already without further encouragement. Feingold v. the Law: Legal Precedent Trumps Political Posturing

As regular readers well understand, the Center for Individual Freedom has strong opinions regarding any number of legal issues, most rooted in our understanding of and appreciation for the U.S. Constitution. We also agree wholeheartedly with Justice Scalia that the Constitution is a legal document, not a living organism, even though we speak with far less authority than he.

The law must be clear, and it must be clearly interpreted by the courts, establishing bright-line directives for all to follow. Otherwise, confusion will be beset by both legal and political mischief, of which there is too much already without further encouragement.

U.S. Senator Russ Feingold (D-Wis.) set about to do self-serving political mischief last week when he proposed censure of President Bush based on the National Security Agency (NSA) "terrorist surveillance program" conducted without warrants, premised on the Senator's assertion of the illegality of that program.

Since Feingold is not dumb, no other explanation of his quixotically crafty maneuver is as probable. Jumping ahead of other liberal lemmings to capture the immediate imagination of leftist activists (not to mention name identification points, media time and money), his was one of those opportunistic political ploys that must be recognized for its chutzpah at the same time it is decried for its irresponsibility.

Whether the legislative branch may even legitimately censure the executive branch is, in and of itself, a question that lacks legal clarity, much less bright-line directive. Censure is certainly extra-constitutional, and other than inducing mainstream media orgasms and causing leftists to speak in tongues would have little more practical effect than a Congressional Proclamation in support of Diversity Day.

As amusing as it might be to contemplate an arguably illegal act as the reaction to an asserted illegal act, that insignificant little detail bothered Senator Feingold and his fawning press no more than the obvious paucity of votes for or even lip service to his stunt.

We suspect that Senator Feingold knows little more about the NSA "terrorist surveillance program," the President's press conference phrase to describe it, than the rest of us, suggesting that ignorance is the handmaiden of desire when it comes to declarations of illegality. No judge, I don't know what they did, to whom, where or when, but I do know with all the certainness of my senatorness that it was illegal.

Thanks to the always estimable and enterprising reporting of National Review's Byron York, neither Feingold nor others can now claim total ignorance of the law. York reminds us of a national security case, the details of which are secret, the results of which are not. Cryptically titled In re: Sealed Case, it was decided in November 2002 by the FISA Court of Review, set up in 1978 to review contested cases decided by the FISA Court, both operating secretly as circumstances require.

While the known background and details of In re: Sealed Case have relevance, we omit them here to emphasize the decision, as summarized by Byron York:

"Not only could the FISA Court not tell the president how to do his work, the Court of Review said, but the president also had the 'inherent authority' under the Constitution to conduct needed surveillance without obtaining any warrant - from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: 'The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information....We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.'

"It was a clear and sweeping statement of executive authority...."

Following the FISA Court of Review's decision, the ACLU asked for U.S. Supreme Court review, which was refused.

It is impossible to know how any court will rule on the current controversy over the NSA program, with its reported but predominantly still-secret domestic element. But the FISA Court of Review opinion provides the President with legal precedent for the executive power he has exercised, adding an at least close-to-point specific to existing wartime executive power. He thus has every legitimate right and reason to persist unless and until the courts say otherwise.

Regardless of the ultimate outcome in the courts, Senator Feingold's political call for censure is as inappropriate as it is doomed. At his press conference this week, the President laid down the challenge for the political opposition, but in light of public opinion polls generally in favor of the NSA program, he is unlikely to sucker many (any?) takers.

Even those who will insist upon taking the current controversy to court might well be advised to practice the circumspection that Senator Feingold did not, by being really, really, very, very careful about what they wish for. Unlike censure motions on a fast train to nowhere, court rulings have a pesky habit of staying around.

March 23, 2006
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