No Checks, Many Imbalances
-- The next time a president asks Congress to pass something akin
to what Congress passed on Sept. 14, 2001 -- the Authorization
for Use of Military Force (AUMF) -- the resulting legislation
might be longer than Proust's ``Remembrance of Things Past.''
Congress, remembering what is happening today, might stipulate
all the statutes and constitutional understandings that it does
not intend the act to repeal or supersede.
perhaps no future president will ask for such congressional involvement
in the gravest decision government makes -- going to war. Why
would future presidents ask, if the present administration successfully
asserts its current doctrine? It is that whenever the nation is
at war, the other two branches of government have a radically
diminished pertinence to governance, and the president determines
what that pertinence shall be. This monarchical doctrine emerges
from the administration's stance that warrantless surveillance
by the National Security Agency targeting American citizens on
American soil is a legal exercise of the president's inherent
powers as commander in chief, even though it violates the clear
language of the 1978 Foreign Intelligence Surveillance Act, which
was written to regulate wartime surveillance.
incoherently argue that the AUMF authorized the NSA surveillance
-- and that if the administration had asked, Congress would have
refused to authorize it. The first assertion is implausible: None
of the 518 legislators who voted for the AUMF has said that he
or she then thought it contained the permissiveness the administration
now discerns in it. Did the administration, until the program
became known two months ago? Or was the AUMF then seized upon
as a justification? Equally implausible is the idea that in the
months after 9/11, Congress would have refused to revise the 1978
law in ways that would authorize, with some supervision, NSA surveillance
that, even in today's more contentious climate, most serious people
consider conducive to national security.
Anyway, the argument
that the AUMF contained a completely unexpressed congressional
intent to empower the president to disregard the FISA regime is
risible coming from this administration. It famously opposes those
who discover unstated meanings in the Constitution's text and
do not strictly construe the language of statutes.
argument about the legality of the NSA program also has been discordant
with the administration's argument about the urgency of extending
the Patriot Act. Many provisions of that act are superfluous if
a president's wartime powers are as sweeping as today's president
says they are.
as some administration supporters say, amending the 1978 act to
meet today's exigencies would have given to America's enemies
dangerous information about our capabilities and intentions, surely
the 1978 act and the Patriot Act were both informative. Intelligence
professionals reportedly say that the behavior of suspected terrorists
has changed since Dec. 16, when The New York Times revealed
the NSA surveillance. But surely America's enemies have assumed
that our technologically sophisticated nation has been trying,
in ways known and unknown, to eavesdrop on them.
terrorism is not the only new danger of this era. Another is the
administration's argument that because the president is commander
in chief, he is the ``sole organ for the nation in foreign affairs.''
That non sequitur is refuted by the Constitution's plain language,
which empowers Congress to ratify treaties, declare war, fund
and regulate military forces and make laws ``necessary and
proper'' for the execution of all presidential powers. Those
powers do not include deciding that a law -- FISA, for example
-- is somehow exempted from the presidential duty to ``take care
that the laws be faithfully executed.''
in which mere obduracy sometimes serves as political philosophy,
pushes the limits of assertion while disdaining collaboration.
This faux toughness is folly, given that the Supreme Court, when
rejecting President Truman's claim that his inherent powers as
commander in chief allowed him to seize steel mills during the
Korean War, held that presidential authority is weakest when it
clashes with Congress.
9/11, the president rightly did what he thought the emergency
required, and rightly thought that the 1978 law was inadequate
to new threats posed by a new kind of enemy using new technologies
of communication. Arguably he should have begun surveillance of
domestic-to-domestic calls -- the kind the 9/11 terrorists made.
But 53 months later,
Congress should make all necessary actions lawful by authorizing
the president to take those actions, with suitable supervision.
It should do so with language that does not stigmatize what he
has been doing, but that implicitly refutes the doctrine that
the authorization is superfluous.
2006, Washington Post Writers Group