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February 16, 2006
George Will, Misrepresenting

Normally I enjoy George Will's columns; he isn't exactly a hard-line conservative, but he usually covers the center-right well enough. In today's effort, though, Will starts off on a rant that not only goes far off the tracks, it doesn't even start on them. He argues that the Bush administration has become "monarchical" in its handling of the war and his argument is primarily based on a misinterpretation of FISA:

But, then, perhaps no future president will ask for such congressional involvement in the gravest decision government makes -- going to war. Why would future presidents ask, if the present administration successfully asserts its current doctrine? It is that whenever the nation is at war, the other two branches of government have a radically diminished pertinence to governance, and the president determines what that pertinence shall be. This monarchical doctrine emerges from the administration's stance that warrantless surveillance by the National Security Agency targeting American citizens on American soil is a legal exercise of the president's inherent powers as commander in chief, even though it violates the clear language of the 1978 Foreign Intelligence Surveillance Act, which was written to regulate wartime surveillance.

This is patently untrue. FISA came into being to regulate peacetime surveillance by the federal government, as an antidote to Nixonian abuses of power that had nothing to do with the conduct of war. In fact, Jimmy Carter's attorney general Griffin Bell made that very argument in promoting the legislation before Congress in 1978, the year after Carter had authorized warrantless surveillance on an American citizen for a simple espionage case involving Vietnam (US v Truong and Humphrey). He told Congress that FISA would not affect the powers of the presidency under the Constitution, and it doesn't, as only a Constitutional amendment can change the enumerated powers.

The authority to conduct wartime surveillance on one's enemy, regardless of whether one terminus of the communication was located in the US, has never been questioned until now. The NSA program used speed as an advantage in tracing and monitoring international calls on phones and from people suspected to have ties to terrorist organizations to uncover the sleeper cells everyone believes still exist in the US. How is that different from listening in on a call from a suspected Nazi agent in Spain to a member of the German-American Bund in 1942? Does Will argue that FDR would have had to have secured a warrant before monitoring that call to see if the Germans had plans to sabotage American industrial facilities?

It's a ludicrous argument, and one that gets worse when Will challenges the Bush administration to really violate the law:

Immediately after Sept. 11, the president rightly did what he thought the emergency required, and rightly thought that the 1978 law was inadequate to new threats posed by a new kind of enemy using new technologies of communication. Arguably he should have begun surveillance of domestic-to-domestic calls -- the kind the Sept. 11 terrorists made.

They did make those calls, but only after conducting a bunch of overseas calls to gain entry into the US and set up their terrorist plot. Had we had the AUMF in place after the bombings in Tanzania and Kenya and allowed the NSA to do its job, we may have prevented the 9/11 attacks altogether. Unfortunately, we had an administration who operated under the same assumptions as George Will -- that war should be conducted as a law-enforcement operation instead of ... well, war. And the Constitution makes clear that the President conducts the war that Congress declares, not the Congress or its legislation.

In the end, Will doesn't even argue for an end to the program, but for Congress to write a new law making it "legal". If that winds up being the will of Congress, then why argue that it didn't come through the initial AUMF in the first place? Will wants to set a precedent where Congress winds up conducting wars instead of the Presidency, a sure-fire way to lose any future conflict we enter. Congress needs to exercise care in its authorization for military force, and then let the American people exercise their check on the presidency by voting the "monarch" out of office. That's the way the Constitution is structured, not to have 535 individuals micromanaging activities that clearly fall under the normal operation of war.

Note: I had a coding error in the first line that didn't reproduce the "hard-line" modifier for "conservative" earlier. I do think Will is conservative, but in more of a center-right kind of way. BTW, I do like Will's work, which I didn't make very clear in this post. Mea culpa.

UPDATE: Andrew McCarthy takes Will apart at the National Review today, as several CQ readers have pointed out:

Specifically, the Court divined in United States v. Curtiss-Wright Export (1936) the "delicate, plenary and exclusive power of the president as the sole organ of the federal government in the field of foreign relations." (Emphasis added.) The Court reaffirmed the point a half-century later in Navy v. Egan (1988), observing that it had long "recognized the generally accepted view that foreign policy was the province and responsibility of the Executive" (internal quotation omitted).

The Court has not rested this view solely on the president's status as commander-in-chief but on all the powers vested in him under Article II. This includes all of the executive power itself which, as the Framers well understood, needed a far wider berth in the international arena if the Nation was to be secure. Will, however, curiously contends that this concept cannot be squared with the Constitution the framers bequeathed us which, according to Will, "empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws 'necessary and proper' for the execution of all presidential powers." ...

It is also, no doubt, why, in United States v. Brown (1973), the Fifth Circuit U.S. Court of Appeals, in upholding the president's inherent Article II authority to conduct warrantless wiretaps for foreign intelligence gathering, asserted that "[r]estrictions upon the President's power which are appropriate in cases of domestic security become artificial in the context of the international sphere." It is why, when FISA became law in 1978, President Carter's attorney general, Griffin Bell, stressed that FISA did not (and, indeed, could not) vitiate the president's inherent authority under Article II. It is why, in 1994, President Clinton's deputy attorney general, Jamie Gorelick, testified that the president maintained his inherent Article II authority to order warrantless searches even when FISA was expanded to regulate such searches. And it is why, even after a quarter-century of FISA, the highest and most specialized court ever to review that statute, the Foreign Intelligence Court of Review, observed in 2002: "[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information... We take for granted that the President does have that authority."

A number of new commenters have taken to posting their own legal analysis, and we welcome that. However, I'm going to rely on McCarthy and his experience prosecuting terrorists like the perpetrators of the first World Trade Center attack. Perhaps Will should as well.

UPDATE: Glenn Greenwald rebuts me, and rather effectively at least on the text of FISA. No doubt Congress did intend to stake out territory in wartime surveillance. However, it's telling that even the Democratic administrations of Carter and Bill Clinton didn't think it applied (Jamie Gorelick argued that international surveillance did not fall under FISA either), and courts have ruled in that direction. But Glenn's right in that Congress clearly intended this to apply to wartime as well.

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Posted by Ed Morrissey at February 16, 2006 6:30 AM

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