Why Didn't He Ask Congress?

[Fred Jones]

Why Didn't He Ask Congress?

By George F. Will

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/19/AR2005121900975.html

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 Sept. 11, 2001, 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 using new technologies such as cell phones and the Internet. In September 2001, the president surely had sound reasons for desiring the surveillance capabilities at issue.

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 it had authorized "all necessary and appropriate force" against those involved in Sept. 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.

One reason was that Congress's 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 past 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 the 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.

Charles 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.

[wskin44]

I'm not usually on Bush's side, but I'm going to withhold judgement. I don't know the laws regarding this and I don't know the role of the eight congressmen who were informed, what they were told or what advice they gave back to the President. It's a little troubling but I'm more bothered by how this got leaked.

[twa]

Probably because he did not wish for it to get entangled in endless debate and rhetoric

Plus his authority is such that he was not required to ask in times such as this,only inform.

At least according to the lawyers.

[Renegade7]

It's not a good idea to let the world know everyone in your country is suseptable to having their phone tapped. Not a good idea at all...

[Burgold]

Probably because he did not wish for it to get entangled in endless debate and rhetoric

Plus his authority is such that he was not required to ask in times such as this,only inform.

At least according to the lawyers.

The danger in your logic is the "in times such as this" part. In the murky way we have defined this war that we are in "times such as this" will never end, they are infinite. There will never be a time where we will not need to be vigilent. Therefore, the suspension of the rule of law, the surrender of rights and liberties you are arguing for is permanent. Presidents are not meant to be kings. They are meant to be restrained by checks and balances. It is one of the chief reasons that this nation has grown and become better and overcome mistakes.

[twa]

The danger in your logic is the "in times such as this" part. In the murky way we have defined this war that we are in "times such as this" will never end, they are infinite. There will never be a time where we will not need to be vigilent. Therefore, the suspension of the rule of law, the surrender of rights and liberties you are arguing for is permanent. Presidents are not meant to be kings. They are meant to be restrained by checks and balances. It is one of the chief reasons that this nation has grown and become better and overcome mistakes.

Good points, but by informing leaders in congress and signing authorizations, there is a check in place.

The actions were not taken hidden from all, but rather the public ,much like ECHELON which invariably collects info on US citizens for decades.

[Joe Sick]

Probably because he did not wish for it to get entangled in endless debate and rhetoric

Plus his authority is such that he was not required to ask in times such as this,only inform.

At least according to the lawyers.

You mean the Bush lawyers, like "Torture is a-okay" Gonzales...

The one with his training in real estate law...

Here's a FAQ on FISA...

http://www.eff.org/Censorship/Terrorism_militias/fisa_faq.html

It's not a good idea to let the world know everyone in your country is suseptable to having their phone tapped. Not a good idea at all...

I'm still trying to figure out how this whole thing is "illegal" to disclose. This wasn't secret, anyway! Who DIDN'T know that the government could spy on a person, with good cause?

[Thiebear]

Did Lieberman set this amendment up in 1998 to get a better handle on terrorism in an amendment?

[twa]

You mean the Bush lawyers, like "Torture is a-okay" Gonzales...

The one with his training in real estate law...

Here's a FAQ on FISA...

http://www.eff.org/Censorship/Terrorism_militias/fisa_faq.html

I'm still trying to figure out how this whole thing is "illegal" to disclose. This wasn't secret, anyway! Who DIDN'T know that the government could spy on a person, with good cause?

You overlook the fact FISA is not all reaching

As far as illegal to disclose, ANY classified info is...You can bet this was HIGHLY classified. The 1st may get the times off the hook ,but NOT the idiot that leaked

[Cskin]

In the murky way we have defined this war that we are in "times such as this" will never end, they are infinite. There will never be a time where we will not need to be vigilent.

But wouldn't the congressmen informed, those voted for by the people, get to a point where they advise the President that this action is no longer needed and declare their lack of support? At that point... the issue can be raised and debated.

The Dems leaked this because.....AGAIN... eventhough it undermines the United States, our military, our intelligence agencies, and the ability to protect America....... BECAUSE they simply are getting desperate for a means to get traction and win back the Congress and White House in the upcoming elections. They can't stand not having the power.... and they'll do anything... including placing the country in greater jeopardy by exposing our secret tactics that keep us safe... in order to use the "Bush Lied...people Died" mantra to win back power.

The Liberal Left... the enemy within.....

[Joe Sick]

You overlook the fact FISA is not all reaching

As far as illegal to disclose, ANY classified info is...You can bet this was HIGHLY classified. The 1st may get the times off the hook ,but NOT the idiot that leaked

How is it HIGHLY classified when stuff like this exists on the web? This tells almost EXACTLY what this group does.

http://www.eff.org/Censorship/Terrorism_militias/fisa_faq.html

-------

People who support the growing fascism of the Bushies = the enemy within...

[Fred Jones]

Accountability, accountability, and accountability. Like with the Patriot Act, someone has to be held accountable and someone has to oversee what the heck the FBI, NSA and every other agency is doing. If these agencies are allowed free reign corruption will sink in and we might as well bring back Hoover. To add, corruption occurs regardless if a democratic or republican is in charge.

To add, with 911 you obviously have broaden the rules and allow the FBI and NSA have expanded powers to do their job in fighting terrorism. Going after liberal peace groups that have an issue with the way the Bush people are handling the environment does not constitute fighting terrorism.

I don’t like the liberal left either, however, like the right wing they have a place in society. The founding fathers gave Congress a lot of power for a reason, but the current administration doesn’t seem too aware of that.

I will comment that if a democrat takes over in three years, and does the same thing, I wonder what the right wing thinkers will say then.

[Taylor 36]

But wouldn't the congressmen informed, those voted for by the people, get to a point where they advise the President that this action is no longer needed and declare their lack of support? At that point... the issue can be raised and debated.

The Dems leaked this because.....AGAIN... eventhough it undermines the United States, our military, our intelligence agencies, and the ability to protect America....... BECAUSE they simply are getting desperate for a means to get traction and win back the Congress and White House in the upcoming elections. They can't stand not having the power.... and they'll do anything... including placing the country in greater jeopardy by exposing our secret tactics that keep us safe... in order to use the "Bush Lied...people Died" mantra to win back power.

The Liberal Left... the enemy within.....

Exactly!!!

[Fred Jones]

But wouldn't the congressmen informed, those voted for by the people, get to a point where they advise the President that this action is no longer needed and declare their lack of support? At that point... the issue can be raised and debated.

The Dems leaked this because.....AGAIN... eventhough it undermines the United States, our military, our intelligence agencies, and the ability to protect America....... BECAUSE they simply are getting desperate for a means to get traction and win back the Congress and White House in the upcoming elections. They can't stand not having the power.... and they'll do anything... including placing the country in greater jeopardy by exposing our secret tactics that keep us safe... in order to use the "Bush Lied...people Died" mantra to win back power.

The Liberal Left... the enemy within.....

The radical right... corrupt, imperial, disregard civil rights and who the heck knows what else because they do a very good job of protecting themselves. Let nothing get out no matter if it is right or wrong. The moral compass broke years ago.

It is about balance. It is all about balance.

[Taylor 36]

Actually, Bush and his administration have not done anything to weaken the powers of Congress. Everything that has taken place to this point has been completely legal. The laws are very clear on the necessary actions and steps the President must take during a time of war (which Congress declared, not Bush) and Bush has stayed well within the bounds of those laws.

Secondly, there is NO proof or evidence that liberal groups of any kind were targeted in any investigation dealing with the highly confidential information that was obviously leaked (completely outside of the bounds of our laws) by some one on the left. The person or persons responsible could be tried for treason and executed according to the statute, since this was done during a time of war and is informative to our enemies about our intelligence and security issues.

[Chopper Dave]

But wouldn't the congressmen informed, those voted for by the people, get to a point where they advise the President that this action is no longer needed and declare their lack of support? At that point... the issue can be raised and debated.

The Dems leaked this because.....AGAIN... eventhough it undermines the United States, our military, our intelligence agencies, and the ability to protect America....... BECAUSE they simply are getting desperate for a means to get traction and win back the Congress and White House in the upcoming elections. They can't stand not having the power.... and they'll do anything... including placing the country in greater jeopardy by exposing our secret tactics that keep us safe... in order to use the "Bush Lied...people Died" mantra to win back power.

The Liberal Left... the enemy within.....

Yes, clearly, the exposing of Bush's lies and lawbreaking is a desperate attempt to gain power by the Democrats. I mean, it's not like the public has a right to know when the government is illegally spying on them. It's not like the President being able to overrule laws at will sets a bad precedent. Who needs laws anyway when you have strong, conservative leadership to think and act for you? Let the government take control of everything. I mean, the Republicans are all about big government it seems, and they're doing just fine. Just devour the party line and you'll be safe. Ignorance is bliss. Give in to Big Brother.

We're the enemy within? Yeah right. We're the only ones who remember what America stands for.

[altair4]

He should be impeached.

He has no legal authority, and his lawyers will "spin" just to cover his butt. After all, that is what they are paid to do.

The Bush family has been a plague on this country for 3 generations.....they are not above the law, as much as they like to believe that they are.

[Chopper Dave]

He should be impeached.

He has no legal authority, and his lawyers will "spin" just to cover his butt. After all, that is what they are paid to do.

The Bush family has been a plague on this country for 3 generations.....they are not above the law, as much as they like to believe that they are.

Unfortunately, he does have legal authority. Legally, he can break the law. Or something like that.

The point is, even though he can do this, he shouldn't. That's pretty much been the MO of this administration, though.

[The Fox]

He didn't have to. There is a statute from back in Ragans days that was put in place that allowes this sort of spying when terrorist are involved. It was done during Ragan, Clinton, and now GW B. IT WAS NOT ILLEGAL, and the Dems on the hill know it, they are liying when they tell you otherwise.

[altair4]

But how do we know "terrorists" were involved? Do we take his word for it? Richard Nixon had an "enemies list" and had no moral restrictions in unleashing the FBI and IRS on his perceived "enemies".

He has all the authority he needs already, he just has to comply with the law. And he clearly has overstepped his bounds.

Treason in a time of waar is punishable by death. Libby, Rove, Bush and Rumsfeld should all be lined up....oh, and don't forget "Big Dick" Cheney....

ugh.

[Chopper Dave]

He didn't have to. There is a statute from back in Ragans days that was put in place that allowes this sort of spying when terrorist are involved. It was done during Ragan, Clinton, and now GW B. IT WAS NOT ILLEGAL, and the Dems on the hill know it, they are liying when they tell you otherwise.

Yes, he is allowed to break the law. That doesn't mean he should. This is just a gross abuse of power. It's no coincidence that an administration notorious for squashing civil liberties and operating in excess secrecy would use their ability to circumvent law to do this.

FISA is easy to get through. Only 4 times out of 18000 have wiretaps not been granted. Bush didn't have to go around them to expedite anything. This wasn't about speeding up the process; this was about the administration making a point that they're above law, above procedure, and above standards of operational decency. They're simply trying to prove that they can do what they want, and that is an awful, awful precedent to set.

[Burgold]

Good points, but by informing leaders in congress and signing authorizations, there is a check in place.

The actions were not taken hidden from all, but rather the public ,much like ECHELON which invariably collects info on US citizens for decades.

Informing is not checks and balances. Telling someone your going to do something and then proceding to do it is the opposite of checks and balances. Sort of like me calling up the police and saying... I'm going to speed today because it's the only way I can get to work on time. Just because I told them I intend to break the law doesn't make it legal. Now, if congressional committees signed off on it, turned it into a bill and the bill was passed, then you'd have a check...

[altair4]

And I would argue further, that we, the people, as the source from which his authority is ultimately derived, have the responsibility to make it known loud and clear that this is an unacceptable precedent.

If that takes impeachment, then so be it...

[twa]

Informing is not checks and balances. Telling someone your going to do something and then proceding to do it is the opposite of checks and balances. Sort of like me calling up the police and saying... I'm going to speed today because it's the only way I can get to work on time. Just because I told them I intend to break the law doesn't make it legal. Now, if congressional committees signed off on it, turned it into a bill and the bill was passed, then you'd have a check...

Do you mean the leadership of congress has been conspiring with Bush?

Tell me what has tied the hands of the congressmen and women to expose this ?

Though I have read of some of are them having memory losses suddenly :laugh:

In fact one went so far as to file a letter to try to cover his @ss when /if this came out....Theres some leadership for ya

[Guest Gichin13]

What is interesting is how not one person so far has actually analyzed George Will's POV in this thread. I for one always find Will's consistency of applying true conservative principles to be refreshing. The more time that passes, the more I like his viewpoints.