washingtonpost.com
No Checks, Many Imbalances
By George F. Will
Thursday, February 16, 2006; A27
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.
But, then, 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.
Administration supporters incoherently argue that the AUMF also 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 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 Sept. 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.
The administration's argument about the legality of the NSA program also has been discordant with its argument about the urgency of extending the USA Patriot Act. Many provisions of that act are superfluous if a president's wartime powers are as far-reaching as today's president says they are.
And if, as some administration supporters say, amending the 1978 act to meet today's exigencies would have given America's enemies dangerous information about our capabilities and intentions, surely FISA and the Patriot Act were both informative. Intelligence professionals reportedly say that the behavior of suspected terrorists has changed since Dec. 15, 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.
Besides, 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."
The administration, 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 Harry S 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.
Immediately after Sept. 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 Sept. 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.
georgewill@washpost.com
© 2006 The Washington Post Company
Contributors
Links
Subscribe to:
Post Comments (Atom)
Blog Archive
-
▼
2006
(1766)
-
▼
February
(99)
- Bush's Carnival Tricks
- Why the Dubai port deal is dangerous to America
- Violence in Iraq, despair back home
- Bush and the Truthiness Taliban
- Somewhat Ironic, No?
- For Inspiration
- The President and the Ports
- John McCain: Any Port in a Storm
- Conspiracy 101
- Cheney and the Late Night Comics
- Iranian advisor: We'll strike Dimona in response t...
- Bush, Rats & a Sinking Ship
- GOP Says Bush Critics Hate America - Look Who's Ha...
- The Boy Who Cried Wolf
- They've Gotten The White House Talking Points
- The names have been changed to protect the guilty
- Fw: Nuclear Weapons: Oppose a Bad Nuclear Deal wit...
- White House/UAE "secret agreement"
- Destroying the Clean Water Act
- U.S. terror fears, stoked by Bush, now bite him
- Iraq's 9/11, or a step toward civil war?
- "Big Brother" watching e-mail, computer data: US r...
- The Dirty Little Secret Behind the UAE Port Securi...
- Our God is Better than Your God!! Or Wait Till you...
- Democratic Senatorial Campaign Committee
- A Test for the New Justices
- Cheers and Jeers
- At Duke's place, bribery was on the menu
- On the Waterfront: Time to Give Ports Back to the ...
- The Mensch Gap - New York TimesThe New York TimesF...
- The dying scandal that keeps growing
- After Neoconservatism
- Don't Punish the Palestinians
- Permanent Bases In Iraq
- Bush's Policies Don't Promote Growth
- What It Means To Be A Republican
- Much Ado About Nothing
- Can Cheney be his own Declassification Machine?
- Judge Orders Spying Documents Released
- DeWine: "We don't want to have any kind of debate ...
- Rx for GOP doom
- In the Mideast, the Third Way Is a Myth
- Cheney's got a girlfriend
- Cheney, "A Beer or Two," and A Gun
- Leaders Lead
- Shoot first, avoid questions later
- Even the Right Say's It's Wrong
- Let the Whitewashing Begin
- If It's Sunday, It's Conservative
- Dream On, Condi
- So Who's Really Full of B(uck) S(hot)?
- U.S. Has Royalty Plan to Give Windfall to Oil Comp...
- Was Cheney Drunk?
- Bush in the GOP Crosshairs
- Rumsfeld and Cheney Revive Their 70's Terror Playbook
- With no word from Cheney, "The Daily Show" stands in
- Not a Laughing Matter
- Democrat Questions Cheney's Role In Leak
- American Bar Association To Oppose Domestic Spying
- Senators: Cheney Should Be Probed In Leak
- Katrina Report Spreads Blame
- Laura Bush: Hillary's Criticism is Out of Bounds
- The Trust Gap
- Bob Barr, Bane of the Right?
- White House Debuts Iraq War Infomercial
- The Beginning of the End?
- Ex-CIA Official Faults Use of Data on Iraq Intelli...
- Bush's Propaganda Alert: Code Red
- Wiretaps fail to make dent in terror war
- The Parent Trap - New York TimesThe New York Times...
- Lieberman's Lapdog Act Not Playing Well
- Gonzales Says "Just Trust Us"
- On the President's Warrantless Wiretapping Program
- Fw: Traumatic Brain Injury Program Is Zero-Funded ...
- The Real Bush Energy Plan
- Burn, Baby, Burn - New York TimesThe New York Time...
- Fw: Federal Budget Choices: State Security or Huma...
- Is George Bush Opening Your Mail?
- Rove counting heads on the Senate Judiciary Committee
- Spying, torture - - is it all hypothetical?
- Bush Team: Again, Not Too Bright
- Joint Chiefs wield mighty pen
- The CIA Leak: Plame Was Still Covert
- A 9/11 Conspirator in King Bush's Court?
- Last Gasp of a Lame Duck
- Iraq war is costing $100,000 per minute
- Fw: Walmart
- A Boehner in the Henhouse
- Iraq, NIger, And The CIA
- Life in the New Amerika
- Administration backs off Bush's vow to reduce Mide...
- What Really Happened
- 9/11 Attacks: Avoiding the Hard Questions
- Money for nothing, chicks for free
- Kucinich Blasts Bush's State of the Union
- Is the World Safer Today?
- Bush on spying, or the "duty to speak with candor"...
- Same old song
- Illegal wiretaps could've prevented 9-11? Not quit...
-
▼
February
(99)
No comments:
Post a Comment