December 20, 2005
Why Didn't Bush Ask Congress?
WASHINGTON -- The
president's authorization of domestic surveillance by the National
Security Agency contravened a statute's clear language. Assuming
that urgent facts convinced him that he should proceed anyway
and on his own, what argument convinced him that he lawfully could?
Presumably the argument
is that the president's implied powers as commander in chief,
particularly with the nation under attack and some of the enemy
within the gates, are not limited by statutes. A classified legal
brief probably makes an argument akin to one Attorney General
John Ashcroft made in 2002: ``The Constitution vests in the president
inherent authority to conduct warrantless intelligence surveillance
(electronic or otherwise) of foreign powers or their agents, and
Congress cannot by statute extinguish that constitutional authority.''
Perhaps the brief
argues, as its author John Yoo -- now a professor of law at Berkeley,
but then a deputy assistant attorney general -- argued 14 days
after 9/11 in a memorandum on ``the president's constitutional
authority to conduct military operations against terrorists and
nations supporting them,'' that the president's constitutional
power to take ``military actions'' is ``plenary.'' The Oxford
English Dictionary defines ``plenary'' as ``complete, entire,
perfect, not deficient in any element or respect.''
The brief should
be declassified and debated, beginning with this question: Who
decides which tactics -- e.g., domestic surveillance -- should
be considered part of taking ``military actions''?
Without more information
than can be publicly available concerning threats from enemies
operating in America, the executive branch deserves considerable
discretion in combating terrorist conspiracies utilizing new technologies
such as cell phones and the Internet. In September 2001 the president
surely had sound reasons for desiring the surveillance capabilities
But did he have sound
reasons for seizing them while giving only minimal information
to, and having no formal complicity with, Congress? Perhaps. But
Congress, if asked, almost certainly would have made such modifications
of law as the president's plans required. Courts, too, would have
been compliant. After all, on Sept. 14, 2001, Congress had unanimously
declared that ``the president has authority under the Constitution
to take action to deter and prevent acts of international terrorism,''
and had authorized ``all necessary and appropriate force'' against
those involved in 9/11 or threatening future attacks.
For more than 500
years -- since the rise of nation-states and parliaments -- a
preoccupation of Western political thought has been the problem
of defining and confining executive power. The problem is expressed
in the title of a brilliant book, ``Taming the Prince: The Ambivalence
of Modern Executive Power,'' by Harvey Mansfield, Harvard's conservative.
Particularly in time
of war or the threat of it, government needs concentrated decisiveness
-- a capacity for swift and nimble action that legislatures normally
cannot manage. But the inescapable corollary of this need is the
danger of arbitrary power.
Modern American conservatism
grew in reaction against the New Deal's creation of the regulatory
state, and the enlargement of the executive branch power that
such a state entails. The intellectual vigor of conservatism was
quickened by reaction against the Great Society and the aggrandizement
of the modern presidency by Lyndon Johnson, whose aspiration was
to complete the project begun by Franklin Roosevelt.
Because of what Alexander
Hamilton praised as ``energy in the executive,'' which often drives
the growth of government, for years many conservatives were advocates
of congressional supremacy. There were, they said, reasons why
the Founders, having waged a revolutionary war against overbearing
executive power, gave the legislative branch pride of place in
Article I of the Constitution.
was that Congress' cumbersomeness, which is a function of its
fractiousness, is a virtue because it makes the government
slow and difficult to move. But conservatives' wholesome wariness
of presidential power has been a casualty of conservative presidents
winning seven of the last 10 elections.
On the assumption
that Congress or a court would have been cooperative in September
2001, and that the cooperation could have kept necessary actions
clearly lawful without conferring any benefit on the nation's
enemies, the president's decision to authorize NSA's surveillance
without the complicity of a court or Congress was a mistake. Perhaps
one caused by this administration's almost metabolic urge to keep
Congress unnecessarily distant and hence disgruntled.
de Gaulle, a profound conservative, said of another such, Otto
von Bismarck -- de Gaulle was thinking of Bismarck not pressing
his advantage in 1870 in the Franco-Prussian War -- that genius
sometimes consists of knowing when to stop. In peace and in war,
but especially in the latter, presidents have pressed their institutional
advantages to expand their powers to act without Congress. This
president might look for occasions to stop pressing.
2005, Washington Post Writers Group