The President and Article II of the Constitution

The Assistant Attorney General William E. Moschella has set forth the Department of Justice’s defense of King George W’s illegal program of domestic spying. It breaks down to three main points.

First, we are told, “Under Article II of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty.”

Here’s why that argument is horsefeathers:

Article I. Section 8 of the Constitution of the United States defines the powers of Congress, and declares:

The Congress shall have the power …

18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.

Get it? The POTUS has power to wiretap and spy and use force and defend the nation in his capacity as Commander-in-chief of the military forces. No doubt. But, and this is a big-ass but, Congress has the power to make laws concerning how POTUS uses this power. Can you say FISA? It’s a little thing I like to call, “checks and balances.”

The second argument advanced by the Department of Justice is that when the Congress of the United States granted the Authorization to Use Military Force, it implicitly granted to the President the authority he now claims. It seems funny that anyone should have to dignify this argument with a response, but, hey, funny is my thing.

Here’s how Tom Daschle answered that argument in the Washington Post on December 23, 2005:

As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

But did the Administration believe that they were being granted authority for warrantless domestic surveillance? Who can ever know what is in another person’s mind? You can. All you have to do is look at what the Administration was doing at the time, Again, Senator Daschle supplies the inside scoop:

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

The argument that AUMF constitutes authorization for domestic spying amounts to an argument that Congress didn’t know what it was doing when it signed off on the AUMF. You might think that if the White House thought that the AUMF authorized domestic spying, they would have gone to the Congress to get that authorization explicitly written into FISA. Indeed, the then-Counsel to the President, now Attorney General admits that this was considered. Here’s what he said on December 19, 2004 at a White House Briefing:

We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.”

So, since Congress wouldn’t agree to it, we’ll just say that they already had done so but that they didn’t realize it at the time. I admire chutzpah as much as the next guy, but that logic is just a bit too tortured. Oops, sorry Alberto.

The third and final argument is that terrorists couldn’t possibly have an expectation of privacy. This is where the truly dangerous tendencies of the DOJ lawyers are revealed. The expectation of privacy is not judged by the content of the conversation, but rather by the nature of the communication. When a person speaks on the telephone, he or she has an expectation that the conversation is not being listened to by anyone other than the intended audience.

Why is this last argument so pernicious? Because it can easily be applied to anyone that the government doesn’t like. Drug dealers? Why should they have an expectation of privacy? Child molesters? Why should they have any rights at all? People who disagree with the government? Hey, haven’t you heard: There’s a war on terror? Quakers? I never trusted them anyway.

Down that road lies tyranny of the sort that our President is sworn to resist. That’s what it means when he takes the oath prescribed in Article II of the Constitution:

"I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

This is about the President of the United States violating his oath and flouting the law. What should be done about it?

"… and tell ‘em Big Mitch sent ya!"

P.S. The line about Quakers was just comedic hyperbole for the purposes of making a reductio ad absurdum argument. Actually, some of my best friends are Friends.