Tricky Resurrection of Dick

Patriot asks:

I've heard liberals argue the Supreme Court's ruling in the Nixon case narrowed inherent Article II powers, thus negating the broad language of previous decisions [presumably referring to cases like Chicago & Southern Airlines v. Waterman SS Corp., 333 U.S. 103, 111-12 (1948) and United States v. Curtiss-Wright Corp., 299 U.S. 304, 319 (1936).]

This argument is naive and unsupported.

1. Get real: As MaxedOutMama says, "this is a political and not a legal controversy." It is "obvious and unarguable" that no governmental interest is more compelling than the security of the Nation. Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964). Despite the Harvard degrees, the Justices are practical people.
   
   They know, even if Dems don't, that clandestine intercepts of foreign intelligence national security information are as old as America. We live in the real world, not in a college dorm, see Snepp v. United States, 444 U.S. 507, 512 n.7 (1980):

   Every major nation in the world has an intelligence service. Whatever fairly may be said about some of its past activities, the CIA (or its predecessor the Office of Strategic Services) is an agency thought by every President since Franklin D. Roosevelt to be essential to the security of the United States and - in a sense - the free world. It is impossible for a government wisely to make critical decisions about foreign policy and national defense without the benefit of dependable foreign intelligence. See generally T. Powers, The Man Who Kept the Secrets (1979).

   Even Congress agrees, for example when debating creating the CIA:

   Representative Wadsworth remarked that the "function of [the Agency] is to constitute itself as a gathering point for information coming from all over the world through all kinds of channels." 93 Cong. Rec. 9397 (1947). Representative Boggs, during the course of the House hearings, commented that the Director of Central Intelligence "is dealing with all the information and the evaluation of that information, from wherever we can get it."

   National Security Act of 1947: Hearings on H. R. 2319 before the House Committee on Expenditures in the Executive Departments, 80th Cong., 1st Sess., 112 (1947), quoted in CIA v. Sims, 471 U.S. 159, 171 n.14 (1985).
   
   In that light, the courts have long confirmed Presidential primacy, see Dep't of Navy v. Egan, 484 U.S. 518, 527 (1988) :

   The President, after all, is the "Commander in Chief of the Army and Navy of the United States." U.S. Const., Art. II, 2. His authority to classify and control access to information bearing on national security . . . flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.

   Contrary to wiretap opponents, the fact that the Constitution also gives Congress a role in foreign affairs does not disable the President's Article II powers, nor Congress' inability to limit those powers, Gilligan v. Morgan, 413 U.S. 1, 6-7 (1973). See Cunningham Memo at 7-8, 11-13 (Feb. 3, 2006); Letter from Senator Pat Roberts to Senator Arlen Specter at 12-15 (Feb. 3, 2006). Nor does the absence of a declaration of war hinder presidential powers, Haig v. Agee, 453 U.S. 280, 303 (1981):
   

   Agee also contends that the statements of Executive policy are entitled to diminished weight because many of them concern the powers of the Executive in wartime. However, the statute provides no support for this argument. History eloquently attests that grave problems of national security and foreign policy are by no means limited to times of formally declared war.

2. Nixon don't help: There are two relevant Nixon cases. Neither undermines the NSA program.
   
   The first ruling actually bolsters the separation of powers argument. United States v. Nixon, 418 U.S. 683, 706 (1974):

   Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

   Id., at 710:
   

   [T]he President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.

   The other, more relevant case is Nixon v. Administrator, GSA, 433 U.S. 425 (1977). There, the Court upheld a law preventing Nixon from destroying the Watergate tapes. The facts, however, suggest its holding is inapplicable here:

   a) The law covered only communications between the President and government employees recorded in the White House and Nixon's two homes. 433 U.S. at 433-34.
   
   b) The law directed the Administrator of General Services to take custody of the Nixon tapes. Importantly, and unlike Congress or Courts, GSA is an Executive Branch agency: "it is clearly less intrusive to place custody and screening of the materials within the Executive Branch itself than to have Congress or some outside agency perform the screening function." Id., at 444.
   
   c) The case cited, quoted and affirmed the earlier Nixon decision:

   The Court recognized that the privilege of confidentiality of Presidential communications derives from the supremacy of the Executive Branch within its assigned area of constitutional responsibilities, but distinguished a President's "broad, undifferentiated claim of public interest in the confidentiality of such [communications]" from the more particularized and less qualified privilege relating to the need "to protect military, diplomatic, or sensitive national security secrets."

   Id., at 447 (footnote omitted) (emphasis added).
   
   d) The law expressly directed GSA "to prevent general access, except in accordance with appropriate procedures established for use in judicial proceedings, to information relating to the Nation's security." Id., at 435.

3. Check the dates: Many of above cases post-date both Nixon decisions. 'nuff said.

Conclusion: In short, Nixon's not the one. Never was. Now let us never speak of this again.

P.S. -- the press of work has precluded much blogging.