Now that hearings have started on the Bush Administration's use of wiretaps to intercept communications between Americans and suspected terrorists overseas, it seems the issue will remain in the political spotlight for a while. Politically, this is probably a good thing for the GOP: the most likely effect of the Dems opposition is to further reinforce the public perception that they are weak on national security issues. Legally, the Administration's main constitutional contention- that it has the inherent constitutional power to warrantlessly intercept messages between Americans and agents of a foreign enemy power -seems reasonably sound to me, at least on its face (setting aside the government's much weaker position that the authorization for the use of force against Al-Qaida constitutes an implied grant of power for such things).
With that being said, those who jealously value the separation of powers should be concerned about the Administration's claim that it can ignore the provisions of FISA in secret, based on the president's inherent power. It is one thing for a president to publicly announce that a congressional statute (such as FISA) infringes on his warmaking power, and therefore he will not enforce it at the expense of endangering national security. It is quite another to make that conclusion and ignore the statute in secret. One can debate the merits of the Bush Administration's arguments as to why the FISA restrictions it bypassed were unconstitutional, but it seems important for the political accountability process and the "rule of law" that the public knows about such exercises of presidential nullification.
Now, of course, in this case public disclosure of the NSA's bypassing of FISA would probably have compromised the intelligence value of a potentially important anti-terror tool, hardly an insignificant consideration. My only point is that legal conservatives should not unquestioningly support an argument that a president may secretly ignore laws if he (and remember, GWB will not always be president) makes the determination that it is in the interests of national security to do so.
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True, GWB will not always be president. And that’s why we need to establish essential war powers while we have a president that understands the nature of the war. When Bush leaves office, his successor (even if Republican) may not have the same type of fortitude against Dem pressure. Remember, Abraham Lincoln suspended habeas corpus to suppress support for the Confederacy. Lincoln’s move would be hard to legally justify, but who would argue it was wrong (aside from a few Civil War historians I know down South)? Now, I’m not saying GW is like Lincoln, but he shares Lincoln’s understanding of how to win a war.
Alberto R. Gonzales : “Our enemy is listening, I cannot help but wonder if they aren't shaking their heads in amazement at the thought that anyone would imperil such a sensitive program by leaking its existence in the first place, and smiling at the prospect that we might now disclose even more or perhaps even unilaterally disarm ourselves of a key tool in the war on terror."
I agree that establishing a "precedent" for future presidents to follow in fighting the war on terror is important, but I'm also worried about setting a precedent that future presidents may conclude that statutes are unconstitutional in secret if they feel they have a national security justification for doing so. As I alluded to, I don't see an easy answer to those conflicting needs, but it is something worth thinking about in my estimation.
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