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All material except cited quotations Copyright (C) 2004-2008 by James Anderson Merritt. All rights reserved.

 
A DIFFERENT APPROACH TO THE WAR POWERS ISSUE

President Bush has incited controversy, by repeatedly authorizing warrantless government eavesdropping on international telephone calls made by or to people in the United States. An unapologetic -- indeed, a defiant -- Mr. Bush says that this is necessary to prosecute his "War on Terror," and that his War Powers, invoked by the Congressional Resolution made after 9/11, give him the authority to do it. Many disagree. Senator Arlen Specter, for instance, now says that Mr. Bush "may have" broken the law, specifically the Foreign Intelligence Surveillance Act of 1978 (FISA). Of course, the point of that law was to give the President some wiggle-room in squaring his conduct against the Fourth Amendment to the US Constitution, which establishes the standard under which "searches," such as wiretaps and other electronic eavesdropping, may be considered "reasonable" under the law: "...no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched."

FISA created a secret court, which could issue warrants without disclosing classified, national security information to the public. It could also issue warrants up to 72 hours after the fact, just in case our NSA had to eavesdrop first, and ask questions later. Frankly, the description of the FISA Court is too similar to that of the Star Chamber, in my opinion. I think the Founding Fathers would have vehemently opposed it, and for good reason. But, in setting up the FISA Court, at least the Congress was attempting to acknowledge and accommodate the Fourth Amendment, if not strictly "honor" it.

President Bush doesn't appear to acknowledge either that 1) the Constitution remains in force, even in time of war, or 2) the only "reasonable" search defined by that document is a properly warranted one. He seems to think that his War Powers certainly trump FISA, and probably also the Constitution.

Unfortunately, we're not technically at war, as Congress never declared it: not against Afghanistan, not against Iraq, not against Al Qaeda. The Congress, the Administration, and their many supporters are pretending that formal war was declared, yet there have so far only been "authoritizations of the use of force," which have left to the President the decisions of how and when to strike -- or whether to strike at all. Mr. Bush asserts that these authorizations empower him to do a great many things, including the suspension of habeas corpus for people designated as "enemy combatants," as well as warrantless eavesdropping, in violation of both FISA and the Constitution's Fourth Amendment. Mr. Bush is getting away with a lot, partly because people seem willing to accept "authorizations of the use of force" as equivalent to declarations of war, and partly because past Presidents have exercised broad powers during our Wars, whether declared or undeclared.

I think that Congress can resolve what seems to be a developing impasse between it and the Executive Branch. First, rescind the authorization of force, upon which Mr. Bush currently relies. At the same time, authorize the President not to make war, but to capture the modern-day pirates who planned and supported the 9/11 attacks. Article I, Section 8, gives Congress the following powers, among others: To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water...

It seems to me that the preceding allows Congress a lot of room to chase down and punish Osama and his confederates, without the need to declare war. If, in Congress' resolution, it is made clear that war is not being declared, then the President can invoke no War Powers, can he. On the other hand, the President must then follow whichever rules concerning Captures, the Congress may establish in its resolution.

I was amused to read this evening that some in Congress are considering a constitutional amendment to define the President's war powers more straightforwardly than has been possible in the past. But is that truly necessary? In our present circumstances, and short of all-out, formally declared war, I think that the Congress can arrange to keep the President on a very short leash, if it truly wants to do so. But does it? Personally, I think Congress has shown itself to be fairly gutless. "Deal with the bad guys as you think best, Mr. President," they seem to say at every opportunity. The cynical might believe that Congress is thus insulating itself by passing the buck, along with the full responsibility for failure, over to the White House. Yet, the Constitution is clear about the powers of the President and the powers of Congress. One branch cannot delegate its power to another. So, Congress is misbehaving in attempting to do so. As much as we need to rein in the Presidency, we also need to hold Congress responsible for its enabling of Presidential excess. When they chastise the President, however much he may deserve it, methinks the Congress doth protest too much.

 
ONE IN 1.12 MILLION

Thanks to Jason Benson, who let me know that there were indeed real people out there -- at least one -- reading my blog and homepage. Jason sent me a dollar through the PayPal link at my personal homepage, and also a friendly note to tell me why. This made my day, and gave my wife a laugh, too, when I told her that someone had finally put something in the "tip jar," after only 1.12 million page hits.

On the one hand, I am very grateful to Jason. As I told him in reply this afternoon, I set up the "tip jar" with no expectations of seeing any real income out of it. It was more a social experiment, just to see if anyone was out there. I'm glad Jason was. On the other hand, he has taken a blog topic away from me. I had once imagined I would be writing a column about "all you cheapskate zombies" every few million hits. Now I have to find another subject. On the third hand (i.e., the hand that I saw one of you zombies carrying!), maybe that's a good thing.

Best to you, Jason. Because of you, I've passed a significant milestone. I owe you one, buddy.