I think we’ve been looking at this NSA thing the wrong way. I have a question for Specter, Snowe, Hagel, Boxer, Kerry, Dasher, Dancer, Prancer, and Vixen: Other than declaring war (which it did in two joint resolutions) and raising money to fund an army (which it also has done), what is the role of CONGRESS or the JUDICIARY in making decisions about the prosecution of a war? They certainly don’t have the constitutional authority to seize war-making powers from the president. And the Fourth Amendment, which the president’s and the war’s detractors seek to apply to military operations, is inapplicable as it applies to criminal justice matters. Indeed, every court (for those who demand judicial review) that has opined on these authorities has said that the president has inherent constitutional power when it comes to foreign-intelligence gathering and the prosecution of war. And they are right. Is any senator familiar with the separation of powers doctrine? Neither Congress nor the courts have inherent or any other kind of constitutional power to wage war. And, yes, waging war includes securing intelligence against the enemy, as it always has.
Moreover, where is the historical precedent for a commander-in-chief, especially during war, being required to ask permission from a court to spy on the enemy, including intercepting communications? Did Abraham Lincoln (Civil War), Woodrow Wilson (World War I), FDR/Harry Truman (World War II), Ike (Korean War), and/or JFK/LBJ/Richard Nixon (Vietnam War) use probable cause as the basis for intercepting enemy communications? Did they go to court each time and ask permission from a judge to intercept foreign intelligence? Of course not. And as pointed out by Byron York and others, recent presidents such as Jimmy Carter, Ronald Reagan, and Bill Clinton have all issued presidential orders making clear that while they will attempt to follow FISA, they retain their inherent constitutional authority to gather foreign intelligence, protect our national security, and wage war. The Fourth Amendment doesn’t apply to al-Qaeda terrorists as they conspire to blow up our cities. (Perhaps John McCain will add the Fourth to the Fifth, Eighth, and Fourteenth Amendment guarantees in his al-Qaeda bill of rights. Far-fetched, you say? Don’t believe it.) Frankly, I can hardly believe we are having this absurd debate.
I am also troubled by some very radical and incoherent arguments (or should I say, allegations) put forth by certain law professors and lawyers. If I heard correctly, on the Fox News Channel the other night Jonathan Turley accused the president of committing a federal crime and an impeachable offense by failing to comply with FISA. So, presumably, every president who has exercised his inherent constitutional powers during war (and, by the way, President Bush has done so in an extremely limited way compared to many past presidents in past wars) exercised power they didn’t have? And it’s only after the creation of the FISC in 1978 that intercepting enemy communications became lawful? You have to be kidding. Bruce Fein has things so backwards that he accuses the president of seizing congressional authority when, in fact, it’s the other way around.
As for the politics of all of this, I will leave that to others. To write, as George Will did recently, that the president should have gone to Congress for authority to do what he already had the power to do is all well and good. But the suggestion that doing so would have, in this case, limited the political fallout is, I believe, simply wrong. This is a Congress, particularly a Senate, which is growing increasingly irresponsible when it comes to keeping our nation’s secrets (Jay Rockefeller, Dick Durbin, Ron Wyden, Richard Shelby, and Patrick Leahy have all been involved in leaks and leak investigations). And it includes among its big accomplishments the al-Qaeda bill of rights and gutting the Patriot Act. Let me go so far as to say that this Senate is weak on national security. No, it hasn’t cut-off funding for the war. And it won’t because the American people support their troops. However, it is chipping away at the tools the president is using to fight the enemy, bit by bit, as if implementing the ACLU’s legal strategy against the war. More and more aspects of the war are being litigated and decided by judges, and the present demand that the president bow to the judiciary is part of the effort.
The president has not acted in a reckless or lawless way. He has sought and received extensive legal advice from scores of legal experts, many of whom are no doubt civil servants. He has numerous internal checks built into the process, requiring a constant review of procedures. And despite the pronouncements of some on the Hill, certain members of Congress were briefed, i.e., it’s not as if they weren’t aware of the program. Sometimes a president has to do what’s right in his eyes and be prepared to defend it, as Bush is now. We used to call that leadership.