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February 07, 2006

It's Like A Jungle Sometimes...

Via Howard Bashman, this fascinating look at the interplay between Congress and the Executive branch. And people wonder why the White House has taken a broad view of its Article 2 powers during wartime (a move which, by the way, is hardly unprecedented in American history since Roosevelt, Truman, Lincoln and other widely-admired Presidents did precisely the same thing).

Could it be because Congress is so paralyzed by politics that it isn't doing its job? Is it possible this is why we have three co-equal branches of government with very different structures and purposes? Or perhaps why the Executive branch is headed by, of all things, a unitary executive whose power has traditionally expanded in wartime and contracted in peacetime? Do tell...

"This is really not a good way to begin these hearings," Senate judiciary committee Chairman Arlen Specter, R-Pa., sighed this morning, only a few minutes after he opened them. Specter was talking about the kerfuffle over whether to swear in Attorney General Alberto Gonzales before his testimony. But he could have been talking about the parameters he had agreed to for the hearing: No witnesses other than Gonzales. No new details of the National Security Agency spying program that the committee was supposed to be inquiring about. No request for the Justice Department's internal legal memorandums about the legality of the NSA program.

...The fuss over whether Gonzales should testify under oath seemed to be about the possibility, at least in Specter's mind, that the attorney general was about to say something that could get him into trouble for lying. Gonzales had been sworn in when he testified twice before, as have other Department of Justice officials. Today, though, Specter said such an oath was "unwarranted" (though Gonzales had agreed to take it).

What follows is classic divide and conquer. Republican Senators aren't sure whether the enemy is the Executive branch, the DNC... or both:

Sen. Lindsey Graham of South Carolina was one of the Republicans who wasn't going for it. "When I voted for [the AUMF], I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche," he said. "I would suggest to you, Mr. Attorney General, it would be harder for the next president to get a force resolution if we take this too far." Gonzales said he understood Graham's concern. But he didn't budge—how could he? Specter also had a question that Gonzales didn't want to answer. "Why not take your entire program to the FISA court within the broad parameters of what is reasonable and constitutional and ask the FISA court to approve it or disapprove it?" Specter asked.

Well first of all, as I observed back in December, "what is Constitutional" wasn't an open-and-shut case even before the BushHitler shredded the Constitution and fed it to Barney the White House terrier:

Strangely enough, warrantless searches are relatively commonplace in a domestic setting. In fact, you might be surprised to find out just how many examples of warrantless searches go on all the time right under our very noses.

Even when it can be shown definitively that prior Presidents used [warrantless] physical searches, which are far more intrusive, during peacetime and against American citizens without impeachment, some call for a wartime President to be removed from office for conducting far less intrusive searches with far more cause. Strangely enough, for these people the argument seems to turn on whether Congress can pass laws which mysteriously override the Constitution. Last time I checked, Congress did not possess that authority.

When one lifts one's head from the chattering on both sides of the political aisle, one thing seems crystal clear.

The President's authority stems from the Constitution, and his first duty is to that Constitution and to the citizens of this nation. This is likewise true of both Congress and the FISA Court, who are both being cited as though they somehow overrule the President instead of being co-equal branches of government, with co-equal powers, under the Constitution.

Each branch of government is set up to act as both a check and a balance upon the others. That they both check and balance each other necessarily implies that at times their powers will conflict.

One cannot help but wonder at the impact on US History if past Presidents such as Lincoln, Roosevelt, and Truman had been impeached for taking a similarly expansive view of their Article II powers during wartime. But Senate Democrats, who revere the role of historical "precedent" and custom when the judiciary or the filibuster are at issue, want to set it aside when it suits their purpose in attacking the Executive.

And regarding Arlen Specter's question, Victoria Toensing has a few choice words. Is Senator Spector implying the FISA court has the power to set its own empowering legislation aside? That is a truly startling suggestion:

FISA still requires extensive time-consuming procedures. To prepare the two- to three-inch thick applications for nonemergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA.

For example, al Qaeda Agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, Agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of Agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack.

Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda Agent A is captured in Afghanistan and has Agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to Agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring Agent C just because he landed on U.S. soil?

Good question. And it appears to be one that Congress still does not want to answer.

Posted by Cassandra at February 7, 2006 12:16 PM

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