[Mb-civic] No Checks, Many Imbalances - George F. Will - Washington Post Op-Ed

[William Swiggard]

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.

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/15/AR2006021502003.html
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