Prof. Cass Sunstein on executive privilege

University of Chicago law professor Cass Sunstein is generally agreed upon as an expert in constitutional law. In a radio interview with Hugh Hewitt, Sunstein says;

It's a little technical, but I think pretty important, which is that since the president has a plausible claim that he has inherent authority to do this, that is to monitor communications from threats outside our borders, we should be pretty willing to interpret a Congressional authorization to use force in a way that conforms to the president's possible Constitutional authority. So that is if you put the Constitutional authority together with the statutory authorization, the president's on pretty good ground.

Sunstein is referring to the granting of authority to the president by the Congress to take all measures necessary to make war on Al Qaeda. Sunstein's overall point is that surveillance is a necessary part of making war and would have to be seen as being approved by the Congress. Relative to whether or not the president should have used the FISA act to approve his surveillance, Sunstein says;

I think there are a couple of things going on there. It's not the most cumbersome thing in the world, but it is something that the president, when national security is on the line, isn't excited about having to go through a procedure where it's conceivable he's going to lose...unlikely, but conceivable. There's another point in the background, really, which if you were there, you know, which is that the president believes here that these are very sensitive Constitutional prerogatives. And this isn't a Republican or Democratic thing. This is something that cuts across political affiliations of the president. And so the notion that in a case as sensitive as this one, he is under a legal responsibility to go through something that may be more time consuming than appears, may be more leaky than appears. Even if he doesn't think it's likely to be leaky, that's something that a president is not likely to think is necessary.

Now, Sunstein says something that I've not heard before. And that is, if the FISA act is construed to prohibit the president from surveillance in time of war, the president would have the duty to challenge FISA's constitutionality. He says;

Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance.

But, and it's a big one;

If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.

Now, Hewitt asks Sunstein about interviews in the MSM and the professor says that he has granted a lot of them. He won't name any particular reporters or their media bosses because of promises of confidentiality. But he says that his opinions have yet to be quoted by anyone. I don't understand that. If Professor Sunstein is widely recognized as a constitutional law expert and he has been widely interviewed, why aren't we hearing and reading about those interviews? This exchange is telling;

HH: Let me ask. Have you been quoted in any papers that you've seen?

CS: I don't think so.

HH: Do you consider the quality of the media coverage here to be good, bad, or in between?

CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is. As I recall, by the way, I was quoted in the Los Angeles Times, and they did say that in at least one person's view, the authorization to use military force probably was adequate here.

HH: Do you think the media simply does not understand? Or are they being purposefully ill-informed in your view?

CS: You know what I think it is? It's kind of an echo of Watergate. So when the word wiretapping comes out, a lot of people get really nervous and think this is a rerun of Watergate. I also think there are two different ideas going on here. One is skepticism on the part of many members of the media about judgments by President Bush that threaten, in their view, civil liberties. So it's like they see President Bush and civil liberties, and they get a little more reflexively skeptical than maybe the individual issue warrants. So there's that. Plus, there's, I think, a kind of bipartisan...in the American culture, including the media, streak that is very nervous about intruding on telephone calls and e-mails. And that, in many ways, is healthy. But it can create a misunderstanding of a particular situation.

HH: The libertarian panic that you referred to, I actually believe that that probably did prompt a lot of the original egregiously wrong analysis. But now I'm beginning to be concerned that the media is intentionally ignoring the very strong arguments defending what the president did. Do you believe that's taking place?

CS: I don't like accusing anyone of intentionally ignoring anything. So I believe with respect to people, whatever their political views, you should have charity, and assume until it's proved wrong that they're acting in good faith. It's still early in this, by the way. And I think the tide is turning a little bit in terms of the legal analysis. If it turns out that this goes on for months, and facts don't come out that are worse than the facts we now have, then it looks...then it will look like a continuing panic, which would be worse than what we've seen just in a couple of days.

I think that he is being overly generous. What we have are a group of influential MSM outlets and reporters who are well financed who have a knee-jerk reaction against anything that George Bush says or does. And if they have a chance to start bandying around the "I" word, they'll do so with reckless abandon, regardless of how many American citizens, in uniform or not, may die as a result of their shrillness.

TAGS: surveillance, FISA, Hugh Hewitt, Cass Sunstein