George Will
I usually agree with George Will, but today's column isn't one of them. Will argues that the NSA surveillance program is "monarchical."
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.
When America is at war, the president, as the Constitution allows, is in charge of the actual war -- and that includes spying on foreign agents. I understand Congress' desire to be a involved in everything, but once they've voted for war -- and that's what the AUMF is -- then their control of how that is waged is necessarily limited. Congress still has a powerful check -- the power of the purse -- but it's obvious that this is something that they're not willing to defund. Why? Because polls show that the American people support the NSA spying program.
Ed Morrissey over at Captain's Quarters also criticizes Will for getting his history wrong.
This is patently untrue. FISA came into being to regulate peacetime surveillance by the federal government, as an antidote to Nixonian abuses of power that had nothing to do with the conduct of war. In fact, Jimmy Carter's attorney general Griffin Bell made that very argument in promoting the legislation before Congress in 1978, the year after Carter had authorized warrantless surveillance on an American citizen for a simple espionage case involving Vietnam (US v Truong and Humphrey). He told Congress that FISA would not affect the powers of the presidency under the Constitution, and it doesn't, as only a Constitutional amendment can change the enumerated powers.
The authority to conduct wartime surveillance on one's enemy, regardless of whether one terminus of the communication was located in the US, has never been questioned until now. The NSA program used speed as an advantage in tracing and monitoring international calls on phones and from people suspected to have ties to terrorist organizations to uncover the sleeper cells everyone believes still exist in the US. How is that different from listening in on a call from a suspected Nazi agent in Spain to a member of the German-American Bund in 1942? Does Will argue that FDR would have had to have secured a warrant before monitoring that call to see if the Germans had plans to sabotage American industrial facilities?
Will is a very smart guy, and he realizes the importance of programs like the NSA surveillance. He suggests that Congress pass legislation making the surveillance legal. As a rejoinder, Morrissey makes another excellent point about all of the faux outrage on Capitol Hill.
If that winds up being the will of Congress, then why argue that it didn't come through the initial AUMF in the first place?
It's often been said that just about every senator -- and quite a few congressmen -- wake up every morning and look in the mirror and see the president there. However, when it comes to actually running a war, it's best if they do their best to remember that that's the real president's job, not theirs.
*UPDATE* National Review's Andy McCarthy offers a more legalistic rebuttal to Will's column here.
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