Holder for Wiretaps

(Compiler's note: Is it really better late than never?)

First it was the special surveillance court that we learned last week has affirmed the President's constitutional power to undertake warrantless wiretaps. Now comes Attorney General nominee Eric Holder, who endorsed this executive authority during his confirmation hearing late last week.

During Thursday's Senate Judiciary Committee hearing, Utah's Orrin Hatch read Mr. Holder a passage from a speech the nominee gave to the American Constitution Society in June of last year. Mr. Holder had said, "I never thought I would see that a President would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens," referring to the National Security Agency program. "This disrespect for the law is not only wrong. It is destructive in our struggle against terrorism."

The Republican Senator was sniffing out Mr. Holder's views on executive power under the Constitution and whether Congress can pass laws, such as the 1978 Foreign Intelligence Surveillance Act, that limit it. "Do you believe," asked Mr. Hatch, "that the President has -- that whoever is President has -- inherent authority under Article II of the Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article II?"

Mr. Holder answered with some political tap dancing. "There's an exclusivity provision in the FISA act that essentially says, as Congress has expressed, this is the exclusive way in which that surveillance should occur," he said. "My speech was taking the Administration to task for not following the dictates of FISA. As I indicated -- I think in response to a previous question -- I think that had the Administration worked with Congress, as we are pledging to do, that tool, a very valuable tool, a very valuable tool, could have been in the arsenal of the Administration without any question about its legality."

Senator Hatch pressed him on this point, resulting in the following exchange:

Mr. Hatch: "Back to my prior point, the President's inherent authority under the Constitution. Can that be limited by a statute? You're relying on a statute as though that's binding on Article II of the Constitution."

Mr. Holder: "Well, the President obviously has powers under the Constitution that cannot be infringed by the legislative branch. That's what I was saying earlier. There are powers that the President has delegated to him -- that he has -- and Congress does not have the ability to say, with regard to those powers, you cannot exercise them. There's always a tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the President, the executive branch interacting with the legislative branch and coming up with solutions . . ."

Mr. Hatch: "That still doesn't negate the fact that the President may have inherent powers under Article II that even a statute cannot vary."

Mr. Holder: "Sure."

Mr. Hatch: "Do you agree with that statement?"

Holder: "Yeah. There are certain things that a President has the constitutional right, authority to do, that the legislative branch cannot impinge upon."

Hatch: "Okay."

So let's see. Mr. Holder now concedes that Presidents have inherent powers that even a statute can't abridge, notwithstanding his campaign speeches. That makes us feel better about a General Holder on national security. But his concession is further evidence that the liberal accusations about "breaking the law" and "illegal wiretaps" of the last several years were mostly about naked partisanship. Mr. Holder's objection turns out to be merely the tactical political one that the Bush Administration would have been better off negotiating with Congress for wiretap approval, not that it was breaking the law. Now he tells us.