| 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[...] 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." |
Almost...
| 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. |
Amazing how these people can twist themselves in knots to avoid the truth.
Here's the problem: Under Bush's theory of the wartime executive, he has refused until very recently to even admit the program existed. Once news of the program broke, he provided only the slightest of details, all the while accusing those who sought the information of providing valuable information to "the enemy." He even has refused to provide much information to the Congress of the United States.
So my question... how can you call for Congress to support the program when we don't even know what it is yet!!!
Beyond that, if your concern is unchecked executive power, how is changing the law after it has already been violated supposed to reign in the executive? Can't we both hold the president accountable for his illegal actions and make whatever changes are necessary? And wouldn't doing anything less severely undermine the rule of law?
And the real question: How is it that I can be more conservative on this than George Will?
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