Thursday, February 16, 2006

George Will Is Wrong on Warrantless Surveillance

George Will normally thinks clearly and gets the facts right. In his editorial this morning, Will writes disparagingly on the president's claim of inherent authority as commander in chief to conduct warrantless surveillance.

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 [FISA], which was written to regulate wartime surveillance.

Will is wrong on two counts. First, FISA was not "written to regulate wartime surveillance". FISA was passed in 1978, a time of peace. FISA was primarily aimed at abuses by Pres. Nixon, abuses that were not connected to the conduct of war.

Second, and more important, the NSA's program of warrantless surveillance does not violate FISA. Neither FISA nor any other statute may reduce the authority granted to the president by the Constitution. To the extent that any statute purports to take away the president's constitutional authority, that statute is itself unconstitutional and thus invalid. By the way, Pres. Roosevelt began intercepting communications to and from the U.S. on the day after Pearl Harbor was attacked. Few felt that he did not have the authority to do so. Has the president's constitutional authority to wage war declined since World War II?

Also, FISA itself provides that it does not prohibit warrantless surveillance authorized by other statutes. The Authorization to Use Military Force {AUMF) gives the president the authority to wage war against Al Qaeda, among others. The incidental authority provided by the AUMF certainly includes the authority to conduct warrantless surveillance of Al Qaeda's communications. What kind of statute would authorize killing the enemy but prohibit spying on the same enemy?

Will argues:

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.

On the other hand, when Congress passed the AUMF, none of the legislators said then, when it counted and before the partisan bickering over the matter started, that the AUMF prohibited the NSA's warrantless surveillance of Al Qaeda. Will's argument could be applied equally to the detention of enemy combatants. As the Supreme Court ruled in the Hamdi case, detention of the enemy is authorized by the AUMF as an incident to waging war. The same holds true for warrantless surveillance of Al Qaeda's communications.

Will has taken too one-sided an approach to this issue. The NSA program of warrantless surveillance is authorized by the Constitution and by the AUMF, and Congress has no constitutional power to restrict the president's constitutional powers. Pres. Bush is doing all he can to prevent another 9/11, and he should not be attacked politically for performing his obligation as commander in chief to protect the country.

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