Friday, December 23, 2005

Pondering National Security

There has been a lot written, both in the media generally and here at TPS specifically, about the supposed revelations (which were known about more than one full year ago by The New York Times, but were released only recently to coincide with both the reauthorization of the USA PATRIOT Act and a Times contributor's book release) of the federal government using its authority to grant internal wiretaps without seeking approval in the forms of warrants from specially designated Foreign Intelligence Surveillance courts.

I will let others dive into the minutiae of the statutes at issue, and raise only the following zen-like question: Is it acceptable for a president to do certain things in the name of national security, even if those things may not be in keeping with the letter of the law? I am probably going to draw the ire of those on both the left and the right by saying that the answer to that question is, unquestionably, yes.

Let me use an absurd example to illustrate my point (and I will grant you that it is an absurd example, but bear with me for the broader point). Suppose Congress rolls back into town in January and decides that it wants to make targeting ordinance -- in other words, bombs -- illegal. It passes the requisite legislation in both houses and overrides the expected presidential veto. Presto! Federal law now forbids the United States Armed Forces from using bombs in any and all military engagements around the world.

What is a commander in chief to do? Would a president be bound by such a ridiculous law? I would argue that a president would not be bound by such a law, on the following grounds: Were Congress to pass a law that, intentionally or otherwise, handicapped the executive branch's constitutionally granted obligation to protect the safety and security of the American people, a president could -- indeed, must -- still do what is deemed necessary to protect the American people, even if that means ignoring or overriding the problematic law. In much the same way that certain constitutional provisions must yield to others, so too must contravening laws yield to the broader, more comprehensive, constitutional authority of a president to provide for the common defense.

Now, the Foreign Intelligence Surveillance Act (FISA) is nowhere near as absurd as my above example, and the structure of the law is such that I do not believe it is as clear-cut as critics of President Bush would have you believe. Nonetheless, let us assume for the moment that what the president authorized in the wake of 9/11 is in fact not authorized under the text of FISA.

I would argue that Bush still had the authority to do what he did anyway. The president and his advisers had access to information, not long after the attacks on New York and Washington, D.C., that what happened that day was, to some extent, the result of an inside job, and that terrorists were here and planning more attacks. A president, armed with that information, would be downright negligent to not authorize internal surveillance of individuals -- whether or not they are citizens -- whether or not specific authority was granted to him to do so via statute. Congress can make laws binding the executive in some ways, and presidents are not free to ignore legitimate laws with impunity, but when Congress directs the president to do (or not do) something in a way that does not comport with national security, a president has an obligation to eschew federal law and abide by the Constitution.

Merry Christmas and Happy Hanukkah, everybody. I look forward to your scorching criticisms next week.

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